Overview of the European Regulatory Framework

From the overview of the applicable EU regulations, we understand that at the EU level the classification of (hazardous) waste and by-products is primarily regulated by:

• 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”);
• Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives ("Directive 2008/98/EC"); and
• Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (“Directive 1999/31/EC”).

The Annex to Decision 2000/532/EC establishes a list of (hazardous) waste.

Article 5 of Directive 2008/98/EC determines under which conditions a substance or object resulting from a production process of which the primary aim is not the production of that item, may be regarded as a byproduct. Additionally, Directive 2008/98/EC implies that waste shall no longer qualify as such if it has undergone a recovery, including recycling, operation and if it complies with the end-of-waste criteria set out in article 6.1 of the directive. 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.

The European Commission gives several examples of wastes and non-wastes in its Communication COM/2007/0059 dated February 2007. Generally, if substances need to be treated before being reused, they cannot be classified as byproducts. Pursuant to Directive 1999/31/EC, non-hazardous and hazardous wastes must be stored and disposed of in storage facilities for non-hazardous waste or, if necessary, for hazardous waste (Article 6). Article 8 stipulates that these facilities are subject to authorization.

Overview of the Dutch Regulatory Framework

1. Dutch regulations on the classification of Steel Slags, Refractories and Aluminum Dross Under the Dutch Environmental Management Act (Wet milieubeheer), waste is any substance, preparation or object which the holder discards, intends or is required to discard. Article 1.1, paragraph 6, of the Environmental Management Act, sets out the conditions under which a substance, mixture or object resulting from a production process of which the primary aim is not the production of that item, may be regarded as a byproduct:

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

Please note that these conditions originate from Article 5 of EU Directive 2008/98/EC.

For certain materials, more specific criteria for the assessment of the byproduct status can be determined at the European or national level (on the basis of Article 5.2 and 5.3 of Directive 2008/98/EC or article 1.1, paragraph 7, of the Environmental Management Act respectively). Article 1.1, paragraph 7, of the Environmental Management Act, stipulates that the Dutch Minister of Infrastructure and the Environment may determine at the national level that a specific type of waste qualifies as a byproduct, if the conditions set out in paragraph 6 are met and if no by-product criteria have been set at the European level pursuant to Article 5.2 of Directive 2008/98/EC. When by-product criteria have been established for a specific material, these conditions apply as the exhaustive assessment framework for determining if a specific waste qualifies as a byproduct.

At the European level, to the best of our knowledge, no by-product criteria have been established yet. In the Netherlands, the Minister has adopted the Criteria for Byproducts Regulation (Regeling criteria bijproducten kaderrichtlijn afvalstoffen). The intention of this regulation is to provide additional clarity on the application of the byproduct criteria of Article 5.1 of Directive 2008/98/EC. This regulation currently only applies to crude glycerine and is therefore in our view not applicable to the metal and steel industry. As far as we are aware, byproducts of the metal and steel industry, therefore, remain to be regulated by the general conditions for the byproduct status laid down in Article 5.1 of Directive 2008/98/EC.

Article 1.1, paragraph 8, of the Environmental Management Act, states that waste that has undergone a recycling or other recovery operation is considered to have ceased to be waste if it complies with the following conditions:

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

In other words, this article contains cumulative conditions for determining whether a particular material can obtain the end-of-waste status. Please note that the rationale and conditions of this article are derived from Article 6.1 of Directive 2008/98/EC.

Paragraphs 9 to 11 of the Environmental Management Act contain further provisions on waste. Insofar relevant, paragraph 10 implements the list of (hazardous) waste of Annex to Decision 2000/532/EC. We derive from the overview of the applicable European regulations that was uploaded to this online platform at an earlier date (and by other legal counsel) that the Annex classifies black drosses from secondary production of aluminum thermal metallurgy as hazardous waste and that refractories can be classified as hazardous waste, depending on the metallurgical process used. We also understand that wastes from the processing of slag and unprocessed slag from the iron and steel industry are in this Annex qualified as non-hazardous wastes.

Every six years, the Minister adopts a waste management plan (currently is the so-called LAP3 is applicable), which contains the policy framework for waste in the circular economy in the Netherlands (Article 10.3 of the Environmental Management Act). The policy framework describes the objective of waste policy and the policy for waste prevention and management. The sector plans of LAP3 elaborate on the policies for different waste flows, such as metals and process-dependent industrial waste from manufacturing processes. Chapter B6 of LAP3 contains the general policy guideline that applies to the interpretation and application of the definition of waste, the conditions and criteria for the by-product status and the conditions and criteria for the end-of-waste status.

The policy is further elaborated in the Guidance Document on Waste or Product (Leidraad Afvalstof of Product). The Guidance Document contains an assessment framework to determine if the material must be regarded as waste or product. As it follows from the Guidance Document that the term "waste" should be interpreted broadly, the question of whether a material is a waste or a product must therefore be addressed in the light of the relevant facts and circumstances. Since the origin, nature and properties of the material itself are not decisive whether the material is a waste or a product, it depends on the circumstances under which the material is applied. A case-by-case assessment is thus required. As practice shows that this assessment is rather technical and complex, the Minister gives legal opinions on the legal qualification of waste streams. Whilst these legal opinions are not appellate decisions, they have a binding effect for the competent authority. The legal opinion only applies to the situation and the company that has applied for the legal opinion. Due to a large number of requests, the Ministry does currently not process any new requests.

For example, upon request of steel manufacturer Tata Steel, it was ruled in a legal opinion on LD steel slags (e.g. the steel slag which is formed during the Linz-Donawitz steel process) dated 22 September 2017, that LD steel slag used in various products for the purpose of civil engineering can be considered as a (by)product. A copy of this legal opinion has been uploaded to the electronic portal in the folder "Supporting Information by Country". Pursuant to the legal opinion, these steel slags are excavated, sieved and de-ironed to extract the steel present in the slag by Harsco Metals Holland B.V. The LD steel slag is assessed against the general by-product requirements of Article 5.1 of Directive 2008/98/EC and the Ministry confirms that the LD steel slag qualifies as a byproduct. However, at the same time, the legal opinion notes that the same flow of steel slag may be qualified as waste material if it is used for different purposes or if the material is not used in accordance with the Dutch Soil Quality Decree.

2. Dutch regulations on landfilling Steel Slags, Aluminum Dross and Refractories

The landfill of commercial waste must in principle take place within a landfill site (article 10.2 of the Environmental Management Act). Competent authorities can provide an exemption for the landfilling of certain non-hazardous waste categories outside landfill sites in the interest of environmental protection. However, in accordance with the waste hierarchy included in article 4 of EU Directive 2008/98/EC, Article 10.4 of the Environmental Management Act specifies the preferred sequence of waste handling: prevention, preparation or re-use, recycling, other recovery, and only then disposal.

Chapter B12 of LAP3 contains the objectives of the Dutch waste policy. Based on Chapter B12 of LAP3, landfilling is considered to be the least desirable form of waste disposal and landfilling of recoverable or combustible waste is therefore not permitted. Accordingly, insofar as steel slags, aluminum dross, or refractories are recoverable or combustible, the landfilling of these waste streams is not permitted under Dutch law. The Dutch Landfill Decree (Besluit stortplaatsen en stortverboden afvalstoffen) specifically prohibits the landfilling of metals and abrasive blast.

If there are (temporarily) no other processing possibilities, it is possible for the manager of a landfill site to apply for an exemption from the landfill ban. This application must be submitted to the Provincial Executive of the province in which the landfill is located. An exemption commonly contains a suspensive condition which invalidates the exemption if there is still processing capacity available at one or more waste processing facilities.

More in general, operators of landfill sites are usually required to obtain an environmental permit (omgevingsvergunning milieu). The environmental permit must contain regulations, at least with respect to the class of the landfill, a list of the wastes to be disposed of in the landfill, the maximum amount of waste to be disposed of, and measures for the prevention or reduction of nuisances and risks.

Under Dutch environmental law, landfill sites for hazardous waste are distinguished from landfill sites for non-hazardous and inert waste materials. The Dutch Landfill Decree stipulates which waste materials are accepted at the landfill site for hazardous waste or at the landfill site for non-hazardous or inert waste materials.

Overview of the European Regulatory Framework

From the overview of the applicable EU regulations, we understand that at the EU level no specific regulations to encourage steel mills and aluminum producers to reuse or recycle their by-products other than mentioned in the answer to Question 1 have been identified. We note that at present (January 2022) several proposals and legislative initiatives concerning the reuse, recycle and alternative application of internal by-products are being prepared at the EU level.

Communication COM(2019) 640 from the European Commission dated 11 December 2019 on The European Green Deal stipulates 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.

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 12.2 of 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”. While details are uncertain, this could in principle result in new possibilities for the reuse or landfilling of waste from steel mills and aluminum producers.

In addition to the aforementioned, we note that on July 14, 2021, the "Fit for 55" package was presented by the European Commission. The package of legislative proposals aims to align the climate and energy policy framework of the European Union with its new economy-wide climate target for 2030 of reducing net greenhouse gas emissions by at least 55% and to put it on track to reach its objective of becoming climate neutral by 2050. Together, the proposals aim to enable the EU to reach its targets in a fair, cost-efficient and competitive way, contribute to a green and just transition and to strengthening innovation of the EU economy in line with the objectives of the European Green Deal. Due to the sheer number and size of proposals, their complexity and interlinkages, as well as their political significance, the drafting of the future regulatory framework is still at a rather early stage. For an overview of the entire “Fit for 55" package, we refer to the website of the European Commission: https://www.consilium.europa.eu/en/policies/green-deal/eu-plan-for-a-green-transition/.

Overview of the Dutch Regulatory Framework

We have not identified any other specific regulations to encourage steel mills and aluminum producers to reuse or recycle their by-products other than those mentioned in the answer to Question 1 (and Question 5 below). Please note that the new Environment and Planning Act (Omgevingswet) is expected to enter into force on July 1, 2022. This act and its associated regulatory framework shall bundle and modernize the vast majority of Dutch environmental regulations. Although the Environment and Planning Act will introduce a number of modifications, the Dutch waste management regime is expected to remain largely the same. The provisions of chapter 10 of the Environmental Management Act on waste regulation remain applicable after the entry into force of the Environment and Planning Act.

Overview of the European Regulatory Framework

From the overview of applicable EU regulations, we understand that at the EU level, the use of chemicals, metals and oxides is primarily regulated 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");
• 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 ("Directive 98/24/EC"); 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 ("Directive 2004/37/EC").

The use of chemicals, metals and oxides during the steel-making process is subject to registration requirements, as they are likely to qualify as substances within the meaning of Article 3 of the REACH Regulation. 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 calendar year and, for certain hazardous substances (so-called "substances of very high concern"), to an authorization or prohibition regime.

Furthermore, the use of chemicals may be subject to occupational exposure limit values included in Directive 98/24/EC and Directive 2004/37/EC.

Overview of the Dutch Regulatory Framework

We understand that this question focuses on the regulations applicable to (i) the use of chemicals and metals used in the steel production process and (ii) the landfill of these chemicals and metals.

(i) Regulations on (the use of chemicals and metals used in) the steel production process are laid down in environmental law (a) and in occupational safety regulations (b).

(a) The REACH Regulation is directly applicable in the EU Member States. The Implementing Act of the REACH Regulation (Uitvoeringswet EG-verordening registratie, evaluatie en autorisatie van chemische stoffen) facilitates the implementation of the REACH Regulation in the Netherlands. The EU framework for the registration and authorization of chemicals is therefore directly applicable in the Netherlands.

More in general, we note that an environmental permit will probably be required for facilities manufacturing raw iron, raw steel or primary non-ferrous metals (such as aluminum and beryllium). An environmental permit is probably also required for activities involving the large-scale production or storage of, inter alia, explosive substances, environmentally hazardous substances, flammable substances, and for waste storage and waste processing activities. For activities that are performed at a smaller scale, no environmental permit requirement may exist, rendering the activities subject to generally applicable regulations under inter alia the Dutch Activities Decree (Activiteitenbesluit milieubeheer). For instance, paragraph 4.5 of the Activities Decree provides various regulations for processing metals, the associated discharge of wastewater and the protection of the soil. Furthermore, paragraph 4.5 of the Activities Decree contains specific requirements for hexavalent chromium.

(b) The Working Conditions Regulation (Arbeidsomstandighedenregeling) contains provisions based on Directive 98/24/EC. An employer is responsible for a healthy and safe working environment. The employer is obliged to include in its hazard identification and risk assessment ("RI&E") the hazardous substances present at the workplace. A hazardous substance is any substance that can endanger the safety or health of employees. In the RI&E, the employer must investigate the dangers, take effective measures to limit exposure and take preventive measures to avoid occupational risks. The employer must also inform the employees of the risks, the measures taken and educate them about them and then monitor compliance. Dependent on the actual quantities of hazardous substances present and the process conditions and additional hazard identification and risk assessment ("ARIE") may be required. For substances that are carcinogenic, such as hexavalent chromium, additional obligation apply, such as an obligation to register exposure. If the exposure level has been assessed on the basis of a limit value, the employer must take the necessary measures to prevent exposure or at least to keep the exposure as low as technically feasible. The Working Conditions Regulation include limit values for the exposure to carcinogenic substances:

• for hexavalent chromium a limit value of 0,001 (time-weighted average) of 8 hours mg/m³ applies;
• for beryllium a limit value of 0,0006^3 (time-weighted average) of 8 hours mg/m³ applies; and
• for fluorine, chromium(0), molybdenum, aluminum oxide and calcium no limit values for carcinogenic substances are included.

Article 4.1c of the Working Conditions Decree (Arbeidsomstandighedenbesluit) requires that general preventive measures must be taken to limit the exposure to hazardous substances. For example, the employer must try to use the hazardous substance as little as possible, allow as few employees as possible to come into contact with it as possible, use adequate work equipment, etc.

Furthermore, skin contact should be prevented or minimized for hexavalent chromium (H317), beryllium (H317 and H315) and fluorine (H314). In addition, eye contact should be prevented or reduced by personal protective equipment when exposed to fluorine (H314).

Please note that in the Netherlands various legal proceedings for damages caused by excessive exposure to hexavalent chromium are pending before the Dutch courts. To the best of our knowledge, there are currently no plans to amend the legal framework. (ii) For an overview of the Dutch Regulatory Framework on landfills, we refer to the answer to Question 1. We understand that fluorine, beryllium, calcium and hexavalent chromium where appropriate are considered to be hazardous according to the Annex to Decision 2000/532/EC.

Overview of the European Regulatory Framework

We derive from the overview of the applicable European regulations that was uploaded to this online platform at an earlier date (and by other legal counsel) that the manufacture of concrete is subject to compliance with the European EN 206/CN standard and that 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 recently approved a new standard: EN 197-5. Two new families of cement (called CEM II/C-M and CEM VI) are regulated by this standard.

Overview of the Dutch Regulatory Framework

In the Netherlands, the NEN develops and manages international, European and national standards on a wide variety of topics. An obligation to comply with certain specific NEN standards can be prescribed by Dutch law, whereas in other instances, compliance with NEN standards is used to demonstrate compliance with more widely defined legal requirements.

Please note that the application of NEN standards is outside the scope of our legal advice due to the highly technical nature of these norms. To the best of our knowledge, the following NEN standards can be relevant to determine the quality of concrete and cement:

• Relating to concrete:
  • NEN-EN 206:2014+A2:2021 applies to concrete for structures cast in situ, precast structures, and structural precast products for buildings and civil engineering structures. We understand from its online description that this standard specifies requirements for the constituents of concrete, the properties of fresh and hardened concrete and their verification, the limitations for concrete composition, the specification of concrete, the delivery of fresh concrete, the production control procedures, the conformity criteria and evaluation of conformity. Within our understanding, other European Standards for specific products e.g. precast products or for processes within the field of the scope of this standard may require or permit deviations and additional or different requirements may be given for specific applications in other European Standards (for example, concrete to be used in roads and other trafficked areas (e.g. concrete pavements according to EN 13877-1) and special technologies (e.g. sprayed concrete according to EN 14487). We note that this standard does not cover health and safety requirements for the protection of workers during the production and delivery of concrete.
  • We understand from the online description of the standard NEN-EN 8005 that it is the Dutch supplement to NEN-EN 206 on concrete specifications, properties, manufacture and conformity.
  • NEN-EN 934-2:2009+A1:2012 contains the standard for admixtures for concrete, mortar and grout. We understand from the online description of the NEN standards that this European Standard specifies definitions and requirements for admixtures for use in concrete. It covers admixtures for plain, reinforced and pre-stressed concrete which are used in site mixed, ready mixed concrete and precast concrete. The performance requirements in this standard apply to admixtures used in concrete of normal consistency. They may not be applicable to admixtures intended for other types of concrete such as semi-dry and earth moist mixes. Provisions governing the practical application of admixtures in the production of concrete, i.e. requirements concerning composition, mixing, placing, curing, etc. of concrete containing admixtures are not part of this standard.
• Relating to cement:
  • We understand from the online description of standard NEN-EN 197-1:2018 that this standard defines and gives the specifications of 39 distinct common cements, 7 sulfate resisting common cements as well as 3 distinct low early strength blast furnace cements and 2 sulfate resisting low early strength blast furnace cements and their constituents. The definition of each cement includes the proportions in which the constituents are to be combined to produce these distinct products in a range of nine strength classes. The definition also includes requirements that the constituents have to meet. It also includes mechanical, physical, and chemical requirements. Furthermore, this standard states the conformity criteria and the related rules. Necessary durability requirements are also given. In addition to those sulfate resisting types of cement defined in the present document, other types of cement conforming either to this standard or to other standards, European or national, have been nationally demonstrated to have sulfate resisting properties.
  • We understand from the online description of NEN-EN 197-5:2021 that it is a standard established for two recently developed cement types CEM II/C-M (Portland composite cement) and CEM VI (composite cement) which are not covered by EN-197-1 and of which the intended use is the preparation of concrete, mortar, grout, etc. The cement types and strength classes defined in the standard allow users to achieve sustainability goals for cement-based buildings and structures and reduce the use of natural resources. Within our understanding, this standard does not cover:
    • common cement covered by EN 197-1;
    • very low heat special cement covered by EN 14216;
    • supersulfated cement covered by EN 15743;
    • calcium aluminate cement covered by EN 14647;
    • masonry cement covered by EN 413-1.

Overview of the European Regulatory Framework

From the overview of applicable EU regulations, we understand that at the EU level regulations to support technologies are primarily incorporated in Directive 2010/75/EU of 24 November 2010 on industrial emissions ("the IED"). Article 11 of the IED 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. The industries covered by these measures are listed in Annex I to this directive.

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).

Overview of the Dutch Regulatory Framework

In the Netherlands, the IED has been implemented in the Environmental Permitting Act (Wet algemene bepalingen omgevingsrecht). The Environmental Permitting Act typically requires that operators of steel and aluminum production facilities obtain an environmental permit. When granting the environmental permit, the competent authorities must determine that the production facilities apply the best available techniques as referred to in the IED and as further determined in the best available techniques reference documents (“BREFs”) and the BAT Conclusions adopted by the European Commission for specific industrial sectors. BREFs and/or BAT Conclusions have, for example, been adopted for waste treatment, large combustion plants, and the production of iron and steel.

Article 2.30 of the Environmental Permitting Act stipulates that the competent authority is obliged to periodically review if the conditions attached to the environmental permit are still adequate in view of the developments in the technical possibilities for environmental protection and the developments regarding the quality of the environment. Developments in the technical possibilities for environmental protection include the adoption of new or revised BAT Conclusions. It follows from article 5.10 of the Environmental Decree that within 4 years after the publication of a new BAT Conclusion, the competent authority must assess to which extent the permit requirements still comply with the new BAT Conclusions. In other words, the competent authority is required to amend an environmental permit by aligning the permit requirement with new or revised BAT Conclusions. The environmental permit can be withdrawn if, by amending the permit conditions, it cannot reasonably be achieved that the best available techniques are applied (Article 2.33 of the Environmental Permitting Act). This mechanism, therefore, ensures that industrial installations apply the best available techniques to protect the environment.

We also note that companies may apply for several governmental subsidies and financial incentives to support innovations. Below we have highlighted various schemes to promote new technologies:

• Under the Energy Investment Allowance (Energie-investeringsaftrek) scheme, companies may gain tax benefits if they invest in energy-efficient technologies and sustainable energy, such as measures to reduce CO2 emissions. 
• Businesses investing in environmentally friendly business assets may be eligible for the Environmental Investment Allowance (Milieu-investeringsaftrek) scheme, which deduct a percentage of the investment costs from the taxable profit.
• The Energy Innovation subsidy scheme (DEI+) (Demonstratie Energie- en Klimaatinnovatie) aims to contribute to economical (and ecological) growth in the Netherlands. Businesses that focus on saving energy, generating sustainable energy, stimulating the use of sustainable energy or the mass-production of products from waste materials may be eligible for a subsidy on pilot projects and demonstration projects within the DEI+ scheme.
• Businesses which produce renewable energy or use techniques that reduce the emission of CO2 may apply for a subsidy through the renewable energy subsidy scheme (Stimulering Duurzame Energietransitie).
• The research and development tax credit under the terms of the Research and Development Act (Wet bevordering speur- en ontwikkelingswerk) may be allocated to stimulate businesses that carry out research and/or development projects. Generally speaking, the Research and Development Act supports development projects, such as the development of technically new (parts of) physical products, production processes or software and technical scientific research.

Please note that the aforementioned governmental subsidy schemes and financial initiative schemes are not only applicable to companies in the metal and steel industries, but to all companies that meet the requirements under the relevant subsidy scheme or financial incentive scheme.

Overview of the European Regulatory Framework

The EU CO2 emission trading system (“EU ETS”) is primarily regulated in Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas (“GHG”) emission allowance trading within the Community ("Directive 2003/87/EC"). The EU ETS sets a cap on the available emission rights to limit the amount of GHG that can be emitted from facilities covered by the trading scheme. The cap is progressively lowered to reduce the level of GHG emissions over time. The legislative framework of the EU ETS was revised with the adoption of EU Directive 2018/410 of 14 March 2018.

As part of the European Green Deal, the GHG emissions reduction targets have been increased and the details for the future amendment of the EU ETS are to be included in new EU regulations. The "Fit for 55" package presented on July 14, 2021 also provides for revision of the EU ETS in order to meet the new reduction target of 55% in GHG by 2030. Several amendments to Directive 2003/87/EC have been proposed:

• the inclusion of maritime transport within the EU ETS;
• the establishment of a separate emissions trading system for buildings and road traffic;
• the introduction of a new border carbon correction system to reduce the risk of carbon leakage ("CBAM") (i.e. the transfer of businesses to other countries with lower emission constraints);
• the amendment of the Market Stability Reserve ("MSR"); and
• several other amendments of the EU ETS (e.g. changes concerning capture and storage of CO2, additional conditions for free allocation of emission allowances, etc.).

Overview of the Dutch Regulatory Framework

Directive 2003/87/EC is implemented in the Environmental Management Act, the Emissions Allowance Trading Decree (Besluit handel in emissierechten) and the Emissions Allowance Trading Regulation (Regeling handel in emissierechten). The Dutch Emissions Authority (Nederlandse Emissieautoriteit) implements the EU ETS in the Netherlands. An emission permit from the Emissions Authority is required for companies that fall within the scope of the EU ETS (Article 16.5 of the Environmental Management Act).

An emission permit is mandatory as of the first emission of GHGs. The main requirement for receiving an emission permit is the availability of a duly drafted monitoring plan to show that the emission measurement installations are accurate and comply with applicable regulations. Companies must monitor the emissions throughout the year and notify the Emissions Authority of any modifications made to the monitoring plan.

Businesses that are subject to the EU ETS must annually submit a verified emission report to the Emissions Authority to report the amount of emitted GHG emissions. The emission data from the emission report is included in the CO2 Emissions Trading Register (Register CO2 emissiehandel).

The Dutch government commented on the EU “Fit for 55” package and the Dutch response to the proposed amendments of the EU ETS are included in two so-called fiches that were prepared by the Dutch Working Party on the Assessment of New Commission Proposals (Werkgroep Beoordeling Nieuwe Commissievoorstellen). For a more detailed overview of the Dutch position in relation to the proposed amendment of the EU ETS, we refer to the following two documents that have also been uploaded to the electronic portal in the folder "Supporting Information by Country":

• Fiche 9: Review of the EU ETS and review of the MSR; and
• Fiche 13: Regulation on the Carbon Border Adjustment Mechanism ("CBAM"). Although the Dutch government has requested the European Commission to give further clarifications on a number of points, the Dutch government is generally positive about the proposals to strengthen and expand the existing mechanisms within the EU ETS and to introduce the CBAM. However, the Dutch government has taken a more critical approach towards the European Commission’s proposal for a trading scheme for road traffic.

Overview of the European Regulatory Framework

From the overview of the applicable EU regulations, we understand that at the EU level the transport of steel slags and applied products is mainly regulated by Regulation 1013/2006 of 14 June 2006 on shipments of waste ("Regulation 1013/2006"). Article 3 of Regulation 1013/2006 provides that waste shipped within the community for recovery purposes listed in Annex IV is subject to the prior notification procedure described in Article 4 of the Regulation.

For shipments to third countries to which 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") is applicable, the export 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. The regulations for exports to non-OECD Decision countries are laid down in Article 36 and 37 of Regulation 1013/2006.

Overview of the Dutch Regulatory Framework

Title 10.7 of the Environmental Management Act refers to various prohibitions of Regulation 1013/2006. Under Article 10.60 of the Environmental Management Act in conjunction with Regulation 1013/2006, it is forbidden to transfer waste without the prescribed notification to, or the required consent of, the relevant competent authorities.

Furthermore, the Dutch Waste Shipment Regulation (Regeling EG-verordening overbrenging van afvalstoffen) has been adopted in view of Regulation 1013/2006. The Dutch Waste Shipment Regulation contains, for example, a further elaboration of the requirement of a financial guarantee for the shipment of waste (Article 6 of Regulation 1013/2006) and determines the criteria for pre-consented recovery facilities (Article 14 of Regulation 1013/2006).

The policy in the Netherlands for the import and export of waste materials is described in Chapter B13 of LAP3. This chapter provides general information on Regulation 1013/2006 and includes general principles for assessing notifications for the cross-border shipment of waste materials. The sector plans to LAP3 include further elaboration of these general principles for each waste category. Furthermore, this chapter addresses:

• the provisions of Regulation 1013/2006;
• the assessment of notifications;
• shipment of waste for disposal;
• shipment of waste for recovery;
• shipment of waste containing substances of very high concern; and
• the instrument of pre-consented recovery facilities.

Please note that the directly applicable obligations under Regulation 1013/2006 prevail over this policy document and the sector plans.