Legal nature of steel slags, refractories and aluminum dross

The legal regime for waste and byproducts in Spain is mainly governed by Law 22/2011, of 28 July, on Waste and Polluted Soils (“Law 22/2011”), which transposed the Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste.

Law 22/2011 defines waste (article 3.a)) as any substance or object that the possessor disposes of or has the intention or obligation to do so. On the other hand, any substance or object resulting from a production process, the primary aim of which is not the production of that item, shall be considered as a byproduct, provided that some conditions are met: (i) further use of the substance or object is certain; (ii) can be used directly without any further processing; (iii) produced as an integral part of a production process; and (iv) the substance or object fulfills all relevant product, environmental and health protection requirements for the specific use. However, for a substance to be considered as a byproduct, it has to be approved by the Ministry for Ecological Transition and Demographic Challenge.

In addition, the end-of-waste status is regulated as an alternative legal regime. Under this regime, the Ministry for Ecological Transition and Demographic Challenge may establish specific requirements stating that certain waste subjected to a recovery operation will cease to be so.

This notwithstanding, the byproduct category and the implementation of the end-of-waste status regime are still very limited in practice. The Ministry for Ecological Transition and Demographic Challenge has approved only three substances to be considered byproducts and the end of waste status has been approved for four types of waste (Grupo de Trabajo de Subproductos y Fin de la Condición de Residuo (miteco.gob.es)). This is expected to change in the near future. The enactment of a new Law on Waste and Contaminated Soils is currently being discussed before the Spanish Parliament and will replace Law 22/2011. This future law foresees to make these legal regimes more flexible, allowing the autonomous communities to authorize on a case-by-case basis the substances derived from the production process that can be considered byproducts, and when a type of waste ceases to be.

Consequently, steel slags, refractories and aluminum dross should be considered waste. The identification of waste to be considered as hazardous and non-hazardous shall be made in accordance with the list set out in Commission Decision 2000/532/EC of 3 May 2000, on the list of waste. Following Decision 2000/532/EC: (i) steel slags are considered non-hazardous waste and identified with codes 10 02 01 and 10 02 02; (ii) refractories are considered non-hazardous waste and identified with codes 16 11 02 and 16 11 04 unless they contain hazardous substances, in which case they are considered hazardous waste, and are identified with codes 16 11 01* and 16 11 03*; (iii) aluminum dross is considered hazardous waste and is identified with codes 10 03 04* and 10 03 08*. Additional codes are foreseen in the Decision 2000/532/EC and might be applicable depending on the transformation process from which the slag is derived.

Limitation or restrictions in landfilling steel slags, refractories and aluminum dross

Landfilling is generally regulated in Spain under Law 22/2011 and Royal Decree 646/2020, of July 7, regulating waste disposal by landfilling (“Royal Decree 646/2020”). There are currently no specific limitations on the deposit of these materials in landfills at a National level. Nevertheless, it should be noted that according to article 6 of Royal Decree 646/2020, it is not allowed to landfill waste that has been collected separately for reuse and recycling. The same article states that before January 1, 2023, the Ministry will approve a list of waste that will not be accepted in landfills because they are suitable for preparation for reuse, recycling or recovery. But at the present time it is uncertain whether steel slags, refractories or aluminum dross will be included in such a list.

In addition, one of Spain's priorities is to reduce waste generation and move towards a circular economy. In this regard, the National Government has recently adopted a soft law document: the Spanish Circular Economy Strategy for 2030. This document aims to overcome the linear economy by promoting the reduction of waste destined for landfills. Also, Article 8 of Law 22/2011 sets out the waste hierarchy, which establishes an order of preference in waste management, with landfill disposal being the last option. Therefore, at least from a purely theoretical perspective, non-landfill is promoted in Spain, and although no specific landfill ban has been introduced for such materials, we can expect that this option will be limited in the coming years. For instance, as we will address in the next question, a new tax on landfills is expected to be introduced in the near future.

The only exception to the above can be found in the autonomous community of the Basque Country. This region has introduced a specific prohibition on depositing in landfills black slag suitable for recovery from the production of steel in electric arc furnaces in article 6.h of Decree 49/2009, of 24 February, regulating the disposal of waste in landfills (“Basque Decree 49/2009”) as amended by Decree 64/2019, of April 9, on the legal regime applicable to the valorization activities of black slag from steelmaking in electric arc furnaces. According to article 46 of Law 22/2011, failure to comply with obligations such as the one stipulated by Basque Decree 49/2009 could be considered as a serious infringement, which could lead to the imposition of penalties (up to EUR 45,000 if the waste is considered non-hazardous, and up to EUR 300,000 if it is considered hazardous) as well as the suspension of the exercise of the activity for one year.

In addition to the generic promotion of the principles of the circular economy, there are currently no regulations at a national level to encourage the reuse of the mentioned substances. However, this situation is likely to change as in the near future, waste producers will have an economic incentive to reuse or recycle waste. During the parliamentary consideration of the upcoming Law on waste and contaminated soils, it has been introduced a new tax on the deposit of waste in landfills and the incineration and co-incineration of waste. Given the increased costs this future tax will entail (EUR 10 per metric tons with respect to non-hazardous waste, and EUR 5 per metric tons with respect to hazardous waste), steel mills and aluminum producers will be encouraged to reuse, recycle and find alternative applications for their waste.

As already mentioned, the practical application of the byproduct and end-of-waste status regimes in Spain is very limited at the moment. The aforementioned materials must therefore be considered waste. Being considered waste, once such substances are generated by steel mills or aluminum producers, they must be managed in compliance with the provisions of Law 22/2011. 

The producer who wants to recover or recycle the waste must be authorized as a waste manager or deliver them to an authorized waste manager; the authorization, to be granted by the regional authorities, may include the conditions under which the material can be valorized and used, if any, as a raw material. 

It is not unusual that the regional authorities allow the valorization or recycle of different waste -including the ones mentioned in this question- to produce asphalt, cement or artificial soils, among others although this is normally approved on a case-by-case basis.

It must be noted that three autonomous communities have issued specific regulations aimed at promoting the valorization and subsequent use of steel slags and establishing the specific conditions to the valorization of such material: Basque Country (Decree 64/2019, of April 9, on the legal regime applicable to the valorization activities of black slag from steelmaking in electric arc furnaces; “Basque Decree 64/2019”), Cantabria (Decree 100/2018, of December 20, on Slag Valorization in the Autonomous Community of Cantabria; “Cantabrian Decree 100/2018”), and Catalonia (Decree 32/2009, of February 24, on the valorization of steel slag; “Catalan Decree 32/2009”).

These regional regulations establish a similar legal regime for the recovery of slags. As already mentioned above, the recovery activity can only be carried out by an authorized waste manager. In this regard, the Decrees set out the technical conditions for both the storage of slag and the slag recovery process. They also regulate the potential uses to which the resulting products can be applied (e.g. concrete, asphalt, fillers, etc.). In addition, uses not expressly allowed by such regulations can be authorized by the regional environmental authority on a case-by-case basis.

Although there are no drafts of new regulations currently available, it is expected that in the coming months, after the approval of the new law on waste and soil pollution, autonomous communities approve new regulations and authorizations to recognize the end of waste status to certain different materials and substances including, if any, the waste identified in this question, since these regional authorities will be competent to do so.

There are no general regulatory limitations on the use of these substances in the steel industry or for landfill disposal. We are not aware of any specific envisaged regulations aimed at prohibiting or limiting such use. Nevertheless, being considered waste, the presence of high levels of such parameters in the steel slags may determine the inability to access certain landfills, in accordance with the provisions of Annex II of Royal Decree 646/2020, of July 7, which regulates the disposal of waste by landfill.

In all instances, these substances must be used within the legal framework and within the limits provided for in Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”).

Without limiting the foregoing, the autonomous communities of Catalonia (“Catalan Decree 32/2009”) and Cantabria (“Cantabrian Decree 100/2018”) have established maximum limits for certain parameters that slag waste cannot exceed in order to be suitable for recovery. The parameters (among others: fluoride, chromium, chlorides, sulfate, cadmium or zinc) and their maximum limits are included in Annex II of the Catalan Decree 64/2019 and Annex I of the Cantabrian Decree 100/2018. If the maximum values are exceeded, the valorization process included in these decrees cannot be used and the slags must be destined for landfill. In both regions, periodic analyses of the quality of the slag must be carried out to verify whether the maximum values of the parameters remain within the maximum values. In Cantabria, the environmental authorities may declare the maximum limits not applicable when the use of the recovered slag is incorporated as a raw material in a product (such as in the manufacture of concrete or cement).

In the Basque Country (“Basque Decree 64/2019”) this control is carried out with respect to the resulting product, preventing its use if the parameters are exceeded. The maximum values for each parameter are listed in Annex II of the Basque Decree 64/2019. The sampling frequency of the steel aggregate parameters will be carried out every three months if the production does not exceed 30,000 tons per year, and monthly if the production exceeds 30,000 tons per year. In both cases, the frequency will be reduced if results comply with the maximum limits for twelve consecutive months. Where the environmental impact and the potential release of components are considered non-existent as a result of the use of the steel aggregate (type 1 uses, in which any type of binder is added - for example, the manufacture of concrete, gravel-cement or mortars), the aforementioned maximum limits will not be applicable.

The types of cement used for the manufacture of concretes and mortars destined to any type of work or prefabricated product shall comply with the technical specifications contained in Royal Decree 1313/1988, of October 28, which declares mandatory the homologation of cement for the manufacture of concretes and mortars for all types of works and prefabricated products.

There are currently no regulations in Spain promoting the addition of fly ash and slag to concrete or cement but such use is expressly permitted. 

The use of steel slag as an aggregate for the manufacture of concrete is allowed according to Royal Decree 1247/2008, of July 18, which approves the Structural Concrete Instruction (EHE-08). Pursuant to the terms of such regulation, fly ash can also be used as an addition to concrete when CEM I type cement is used. In addition, fly ash can be used in cement under the terms established by Royal Decree 256/2016, of June 10, approving the Instruction for the reception of cement (RC-16).

We have not identified any specific Spanish regulations concerning these areas.

Nonetheless, carrying out industrial activities is subject to the prior obtaining of certain environmental permits and authorizations. The specific authorizations required would depend on the actual characteristics of the activities and their environmental impact. As mentioned above, Law 22/2011 subjects the management and recovery of waste to authorization. Law 34/2007, of 15 November 2007, on air quality and protection of the atmosphere, also imposes the obtaining of authorization for atmospheric emissions, including volatile organic compounds from the steel industry. The processing of steel slags is also expressly subject to obtaining this atmospheric emissions authorization. Furthermore, in accordance with Royal Legislative Decree 1/2001, of 20 July 2001, approving the consolidated text of the Law on Water, discharges into the public water domain are subject to authorization, which must specify the conditions for wastewater treatment.

The main environmental permit is the integrated environmental authorization (autorización ambiental integrada) regulated by the Royal Legislative Decree 1/2016 of 16 December, approving the consolidated text of the Law on Integrated Pollution Prevention and Control. This regulation implements Directive 2010/75/UE of 24 November 2010 on industrial emissions. The activities and facilities included in Annex I (such as facilities with a high capacity of production and transformation of metals and cement -sections 2 and 3.1 of Annex I-) must obtain the mentioned integrated environmental authorization, which is a complex environmental authorization that comprises in a sole resolution all the environmental authorizations and establishes the conditions and preventive measures regarding, among others, air emissions, dust emissions, management of waste, wastewater discharges and soil protection.

All the aforementioned regulations impose that the conditions and limit values of emission established in the authorizations shall be based on the best available techniques ("BAT"). Therefore, although the environmental authorities are not allowed to prescribe the implementation of a certain technology, in practice the steel industry has to adapt its technology in order to meet the emission limit values foreseen in the BAT conclusions.

Spain, as an EU Member State, is part of the EU Trade Scheme under EU Directive 2003/87/EC ("EU ETS") implemented in Spain by means of Law 1/2005, of 9 March, governing the greenhouse gas emissions (“GHG”) trading scheme. 

Facilities under Law 1/2005 must obtain specific authorization for emitting GHG, granted by the autonomous regions, and must deliver annually GHG emission allowances per each equivalent ton of carbon dioxide emitted. The current trading period started in January 2021 and will end on December 31, 2030 (phase IV). Emission allowances may be allocated by means of an auction (which is aimed to be the main method of allocation) or by free allocation (which is especially relevant for facilities exposed to a significant risk of carbon leaks).

On the other hand, small-scale installations -those that emit less than 25,000 tonnes of equivalent carbon dioxide and combustion plants with a rated thermal input below 35 MW- are exempt from this regime. An alternative scheme is envisaged for these facilities in Royal Decree 317/2019, of 26 April, which defines the mitigation measure equivalent to participation in the emission trading scheme. This regime imposes a minimum 32% reduction of emissions for these installations by 2025, with regard to 2005 levels. Additionally, Royal Decree 18/2019, of 25 January, excludes installations with less than 2,500 tonnes of equivalent carbon dioxide from the EU ETS. However, they are required to monitor and report their emissions to the relevant authority.

Furthermore, Law 7/2021, of 20 May, on climate change and energy transition has been recently approved. This law set a legally binding target for 2030 of reducing greenhouse gas emissions by 23%, compared to 1990 levels (different from the current reduction target of at least 55% compared to 1990 levels that have been set at the EU level), with the ultimate target of achieving climate neutrality by 2050.

There is no specific CO2 emission regulation facilitating the deployment of byproducts from steel mills or aluminum producers. This is without prejudice to the benefits of its use for the purpose of reducing the emission of GHG.

As long as steel slag is considered a waste, it will be subject to the limitations inherent to waste regulations. Therefore, according to Law 22/2011, only authorized waste managers can collect, transport, buy or sell it. Only after the steel slag has undergone a recovery process may it be placed on the market without restrictions provided that all the safety and environmental conditions are met.

The import and export of steel slags (both within the European Union and with third countries) are governed by Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste. 

The shipment of waste within the Spanish territory between different regions is subject to the provisions of Royal Decree 553/2020, of June 2, regarding ships within a region, regional regulations apply, although some basic requirements must be observed by them.

Three requirements are applicable to all shipments within the Spanish territory:

1. having a treatment contract, whereby the manager of a waste treatment facility commits to treating the waste;
2. the waste must be accompanied by an identification document from the origin to its reception at the destination facility; and;
3. a prior notification regime with respect to hazardous waste (e.g. aluminum slag or steel slag containing hazardous substances) to the authorities of both the autonomous community of origin and destination. The prior notification shall be submitted at least 10 days before the shipment is to take place. The notification may be valid for multiple shipments provided that the waste has similar physical and chemical characteristics and is shipped to the same recipient and facility, and will be valid for a maximum of three years.