Technical guidance on waste classification is published jointly by the environmental regulatory agencies across England, Wales and Scotland. The Environment Agency, Natural Resources Wales and the Scottish Environment Protection Agency (“SEPA”) have (as of January 2021) recently updated their ‘Technical Guidance WM3 – Waste Classification: Guidance on the classification and assessment of waste’ (“Waste Classification Guidance”) as a result of the UK leaving the European Union (“EU”). However, at present, classifications are still determined by reference to the EU List of Wastes (discussed further below). If the waste cannot be determined as absolutely hazardous or absolutely non-hazardous, the chemical composition of the waste must be assessed for hazardous properties. The importance of classifying waste for the purposes of disposal to landfill is outlined further below. The following table illustrates the classifications of each product insofar as we understand the Client’s operations within the UK.

Scotland, England and Wales

• Steel Slags
  • Absolute non-hazardous waste, being waste that is always non-hazardous (Note: if it is understood that the waste displays a hazardous property, you must continue the steps to classify the waste).
• Refractories
  • Carbon-based lining and refractories from metallurgical processes containing hazardous substances – Mirror Hazardous, being waste that may be hazardous.
  • Carbon-based lining and refractories from metallurgical processes other than those above – Mirror non-hazardous, being waste that may be non-hazardous. Other linings and refractories from metallurgical processes containing hazardous substances – Mirror Hazardous
  • Other linings and refractories from metallurgical processes containing hazardous substances – Mirror Hazardous
  • Other linings and refractories from metallurgical processes other than those above – Mirror Non-Hazardous
  • Linings and refractories from non-metallurgical processes containing hazardous substances – Mirror Hazardous
  • Linings and refractories from non-metallurgical processes other than those above – Mirror Non-Hazardous
• Aluminum Dross
  • Black drosses from secondary production - Absolute Hazardous

In the UK, the Environmental Protection Act 1990 places a general duty of care upon anyone who produces imports, keeps, stores, transports, treats or disposes of waste to take all reasonable steps to ensure that the waste is managed properly i.e. storing it properly, only transferring it to appropriate persons and transferring it to ensure its safe recovery or disposal. A breach of this duty could lead to a fine. In Scotland only, prescribed by the Waste (Scotland) Regulations 2012, there is an extension of this duty whereby holders of waste, including producers have a duty to take reasonable steps to increase the quantity and quality of recyclable materials. In order to comply with this duty of care you must:

• Segregate, store and transport waste appropriately and securely, making sure that you do not cause any pollution or harm to human health.
• Check that waste is transported and handled by people that are authorized to do so. Note: If you transport your own waste you must register as a collector or transporter of waste.
• Complete waste transfer notes, including a full, accurate description of the waste, to document all waste you transfer and keep them as a record for at least two years.

The Waste Framework Directive 2008/98/EC (as amended by Directive 2018/851) (“WFD 2008”) provides the overarching policy and legislative framework for the management of waste in the UK, including a common definition of waste. WFD 2008 was incorporated into Scottish legislation by the Waste (Scotland) Regulations 2011 and in England and Wales by the Waste (England and Wales) Regulations 2011 respectively. The UK follow the waste hierarchy created by the WFD 2008, whereby prevention is the overarching principle, followed by preparation for reuse, recycle, recover other value and if none of these options is available then disposal.

If (after following the waste hierarchy) waste is to be disposed of, before sending waste to landfill you must:

1. Classify your waste

You must determine whether the waste is hazardous or non-hazardous (using the Waste Classification Guidance).
The WFD 2008 prescribes a list of properties of waste which render it hazardous and outlines corresponding classifications for waste where the waste contains such substances (known as the List of Wastes or the European Waste Catalogue. The List of Wastes refers to the List of Wastes Decision 2000/532/EC (as amended) which is incorporated into law in England and Wales by the Hazardous Waste (Miscellaneous Amendments) Regulations 2015 and the Hazardous Waste (Miscellaneous Amendments) (Wales) Regulations 2015. The Waste Framework Directive and the List of Wastes is part of retained EU Law following the UK’s exit from the EU.
In Scotland, the Special Waste Regulations 1996 (as amended) still apply and provide a definition of 'special waste' to cover all hazardous waste. These regulations also cover procedures to be followed when disposing of, carrying and receiving hazardous waste.

2. Treat the waste

All waste will normally have to be treated before sending it to the landfill as outlined by the Landfill Directive 1999/31/EC (as amended) (“Landfill Directive”). The Landfill Directive outlines that only waste which has been treated to either reduce the quantity of the waste or the hazard to human health or the environment can be landfilled. The permitting requirements for landfill sites under the Landfill Directive are implemented through the Environmental Permitting (England and Wales) Regulations 2016 in England and Wales. The Landfill (Scotland) Regulations 2003 (as amended) implements the Landfill Directive in Scotland.

3. Make sure the landfill can accept your waste

Hazardous and non-hazardous waste must not be disposed of in the same landfill it is important to check what kind of waste the landfill accepts. In general, the Landfill Directive prevents landfill sites from accepting liquid waste (although England and Wales benefit from a derogation allowing the storage of metallic mercury waste under certain conditions) and any type of corrosive or oxidizing waste.

There are no specific regulations governing this. However, the Environment Agency in conjunction with SEPA issued Guidance for the production of coke, iron and steel which provides that Electric Arc Furnace (“EAF”) slag can be recycled as civil engineering aggregate or roadstone, after an appropriate period of weathering or used as an additive by the cement industry. Slag from stainless steel production generally has a high CaO/SiO ratio which makes it less attractive for use in construction. It tends to be landfilled after metal recovery. As the slag contains elevated levels of Cr VI landfill sites must be adequately sealed to prevent the leaching of chromate ions.

However, as mentioned above, the jurisdictions of England, Wales and Scotland follow the waste hierarchy created by the WFD 2008. Preventing waste is the preferred option and sending waste to landfills should be the last resort. However, if prevention is not possible producers are encouraged to prepare would be waste for reuse, recycle it or recover it where possible. These processes may subject to the environmental permitting regime in England and Wales or the Pollution Prevention and Control (PPC) Regulations in Scotland. These permitting systems are a regulatory system that employs an integrated approach to control environmental impacts of certain listed industrial activities.

The Zero Waste Plan for Scotland (2010) outlines the Scottish Government’s vision for a zero-waste society. In order to gain the environmental and economical advantages of zero-waste, it is recognized that we cannot continue to send resources which have value to landfill. To achieve this, the Scottish Government aim to introduce regulations to ensure that waste technologies recover the maximum energy from materials and that only waste which cannot be reused or recycled is sent to landfill.

The Welsh Government also published their Towards Zero Waste Plan in 2010. In the plan, it is acknowledged that landfills will require to be eliminated as far as possible in order for Wales to reduce its greenhouse gas emissions and make the most of its valuable resources. The plan states that diverting waste from landfill sites to recycling will have the greatest benefits. In England, the Department for Environment, Food and Rural Affairs (“DEFRA”) have recently published their own Waste Management Plan for England (January 2021) which stresses the need to promote high-quality recycling and the need to develop nationally significant hazardous waste infrastructure.

It is clear that despite no regulation currently being in place, the respective national governments in each jurisdiction are keen to drive forward and encourage reuse and recycling.

• EPR Schemes - Zero Waste Scotland (a publically-funded organization) is striving for the use of Extended Producer Responsibility (“EPR”) schemes in Scotland. The concept of these schemes is to ensure that producers bear responsibility for the environmental impacts of products and are incentivized to reduce these impacts through design, reuse, repair and durability as well as ensuring products can be recycled. In 2016, a paper was published by the Scottish Government: Making Things Last: a circular economy strategy for Scotland setting out an ambition to take a more comprehensive approach to EPR, to encourage reuse, repair and remanufacture and address the costs of recycling and disposal.

The UK currently has 4 EPR systems in place. We do expect it likely that the Scottish Government and indeed the UK as a whole to bring forward EPR Schemes in the future, whether that be voluntary or mandatory.

The steel industry would seem an ideal candidate to implement such a scheme given the ability to reuse waste material from processes to make byproducts.

• Waste Prevention Programs - DEFRA is consulting on a new Waste Prevention Programme for England: Towards a Resource Efficient Economy which involves preventing waste by amongst other things, increasing reuse, repair and remanufacture of products. It outlines the potential for and benefits of action on waste prevention and what the industry is already doing and could do. The aim is to ensure there is better access to information as to what secondary materials including byproducts and products are in the economy, facilitating the increased use in manufacturing and providing for access to knowledge to drive change. Specific mention is made in the Consultation Paper of the use of steel slag as a substitute material for making cement
• Resource Recovery from Waste – Making the most of industrial wastes: strengthening resource security of valuable metals for clean growth in the UK Policy Note highlights the potential of industrial waste to contribute towards the UK’s ambition of clean growth and recommends the UK Government should aim to develop integrated policies that unlock the potential of resource recovery from waste.

The Control of Substances Hazardous to Health Regulations 2002 – These regulations place certain duties upon employers whose employees handle or come into contact with substances hazardous to health. Such substances include chemicals, products containing chemicals, fumes, dust, vapors, etc. (including substances listed as dangerous under the CHIP Regulations below). Specific requirements placed upon an employer include:

1. Creating and maintaining a suitable and sufficient risk assessment of the risk to health created by work involving exposure to substances hazardous to health and identifying and implementing the necessary steps to ensure the safety of such employees.
2. Ensuring that the exposure of employees to substances hazardous to health is either prevented or, where that is not reasonably practicable, adequately controlled by applying protection measures appropriate to the activity and consistent with the risk assessment.
3. Ensuring any control measure put in place is properly used or applied.
4. Ensuring any control measure put in place is regularly maintained, examined and tested e.g. engineering controls, respiratory protective equipment, PPE, etc.
5. Ensuring that employees' exposure to substances hazardous to health is monitored at regular intervals and when changes in exposure occur.
6. Provide suitable information, instruction and training to employees exposed to hazardous substances.
7. Ensure the appropriate arrangements are in place to deal with accidents, incidents and emergencies.

The Chemicals (Hazard Information and Packaging for Supply) Regulations 2002 – These regulations outline certain requirements in relation to the supply of dangerous substances and dangerous preparations. Specifically that:

1. They are classified before being supplied. The classification includes in terms of Physio-Chemical Properties, Health Effects and Environmental Effects. See Regulations for specific detail.
2. The supplier is required to provide recipients with a safety data sheet free of charge outlining the information … The datasheet should be kept up to date and revised if any significant new information arises.
3. The supplier shall not advertise dangerous substances or preparations, or arrange for the production of any advertisement unless a mention is made in the advertisement of the type of hazard indicated on the label.
4. The supplier must not supply dangerous substances or preparations which are labeled “very toxic”, “toxic” or “corrosive” (amongst others), unless it is packaged so that its contents cannot escape and fastenings won’t become loose and can be refastened.

The supplier must clearly label the particulars of any dangerous substance or preparation on any packaging or layer of packaging. Those particulars are outlined in the regulations.

The Dangerous Substances and Explosive Atmospheres Regulations 2002 – These Regulations place certain duties on employers to protect people from risks to safety in the workplace from dangerous substances (which are substances that could cause harm to people as a result of fire or explosion or corrosion of metal). Specific requirements placed upon an employer include:

1. Carry out a suitable and sufficient risk assessment of his employees which arise from the presence of a dangerous substance in the workplace.
2. Ensure that risk is either eliminated or reduced so far is reasonably practicable by applying measures to control risks and mitigate detrimental effects of a fire or explosion or other harmful effects arising from dangerous substances.
3. Identify areas of the workplace where explosive atmospheres may occur and avoid ignition sources in those areas.
4. Prepare plans and procedures to deal with accidents, incidents and emergencies involving dangerous substances.

It is important to ensure employees have suitable and sufficient information, instruction and training on the appropriate precautions and actions to be taken in order to safeguard themselves and others in the workplace from dangerous substances.

European Regulation (EC) No. 1272/2008 on Classification, Labelling and Packaging of Substances as retained in UK Law by Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment, etc.) (EU Exit) Regulations 2019 and amended by The Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment, etc.) (EU Exit) Regulations 2020 – The EU CLP Regulation adopts the UN Globally Harmonised System of the classification and labeling of chemicals ("GHS") across all EU Countries.

Following Brexit, the UK continues to adopt the GHS independently of the EU.

The REACH etc. (Amendment etc.) (EU Exit) Regulations 2019 as amended by the REACH etc. (Amendment etc.) (EU Exit) Regulations 2020 – These Regulations bring into force Regulation EC No 1908/2006 the Registration, Evaluation, Authorisation and Restriction of Chemicals ("REACH") with various amendments to create a UK REACH.

The chemicals regime in the UK has newly been updated following the UK’s exit from the EU. It is not anticipated that there shall be any changes to the regime within the next 12-18 months.

There are currently no specific regulations encouraging or limiting this in England, Wales or Scotland. However, the UK has passed legislation requiring the government to take action to achieve net-zero emissions by 2050 (The Climate Change Act 2008 (2050 Target Amendment) Order 2019). Scotland has gone even further than this and set a target of 2045 (The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019). These are extremely challenging targets meaning action needs to be taken now. Businesses are being encouraged to take steps they can to reduce their own emissions. It is therefore likely that any technology which supports the reduction of carbon emissions would be welcomed in the UK. See above and below for more information on how new technologies and the reuse of materials are to be supported and encouraged.

The industry is recognized as being one of the largest producers of our emissions so we do expect to see a significant change to address the climate emergency and reducing carbon emissions generally in the short to medium-term future.

There are currently no regulations specific to the support of new technologies for the above in England and Wales or Scotland.

• Scotland: The Securing a Green Recovery on a path to net-zero: Climate Change Plan 2018-2032 was published in December 2020 outlining a plan for achieving net-zero. The industry was specifically highlighted as constituting around 30% of total Scottish emissions. The Scottish Industrial Energy Transformation Fund has been set up to support projects that will deliver against climate change targets by co-investing to decarbonize industrial sites.
• England: The Industrial Decarbonisation Strategy Policy Paper was published in March 2021 outlining the strategy on how the industry can decarbonize in line with net-zero. The paper sets out that consideration will be made to the implications of the recommendation of the Climate Change Committee to set targets for ore-based steelmaking to reach near-zero emissions by 2035. The current Decarbonisation Policy includes the Clean Steel Fund. The fund aims to enable the transition to lower carbon iron and steel production through supporting new technologies and processes, placing the sector on a pathway that is consistent with achieving the net-zero target and harnessing clean growth opportunities. As of January 2021, there was £250 million in funds for this.

• Brexit and replacement of EU ETS

The UK ETS replaced the UK’s participation in the EU ETS on January 1, 2021, following the UK leaving the EU at the end of the Brexit transition period. The UK ETS sees the UK depart from the established EU-wide ‘cap and trade' scheme, replacing this with a standalone version of the scheme applicable to the UK which mirrors the EU ETS in almost every way.

The UK Government was keen to provide certainty and consistency to businesses and as such, adopted the same principle of a cap on emissions (reducing over time), together with freely tradeable emission allowances that companies and sectors are familiar with. The UK also ensured consistency with the industries that fall within the scope of the EU ETS and UK ETS, covering electricity and heat generation, heavy industry and aviation.

The UK Government has sought to be clear in its approach and to ensure that there is no carbon leakage from manufacturers moving carbon-intensive industries overseas. However, although the UK ETS does seek continuity with the outgoing EU ETS regime, the UK Government is in the process of actively exploring ways to evolve the scheme in order to make the most of opportunities that a standalone system presents, whilst at the same time considering the linkage of the UK ETS and EU ETS, as is being encouraged by business groups and sectors. No decisions have yet been made on this, but 2021 is likely to be a transitional year for the UK ETS scheme as it is established.

• Current compliance requirements

As the UK’s departure from the EU occurred with a scheme year, operators in the UK are required to continue to comply with their EU ETS obligations in relation to the 2020 scheme year, which ends on April 30, 2021.
From January 1, 2021, operators no longer have access to the Kyoto Protocol National Registry within the Consolidated System of European Registries and if wishing to hold on to allowances, such operators had been advised to open trading accounts with an EU member state in the interim period between losing access to the EU Registry and the opening of the UK Registry.

Newly published guidance on the UK ETS provides further information in relation to the practical implementation of the UK ETS, under which the first trading accounts were to be created from April 6, 2021.

The accounts that will be available in the UK Registry (mirroring the EU ETS) include:

• Operator Holding Accounts, which operators will be required to have in order to acquire and surrender allowances;
• Under the UK ETS, specific accounts for aircraft operators;
• Trading accounts, not related to UK ETS compliance, but will enable the user to hold and trade UK allowances; and
• Person Holding Accounts – the Registry will be used to host the UK Kyoto Protocol Registry.

• Key compliance dates in 2021

From April 6, 2021, operators can register for and then apply to open, a UK ETS trading account. The UK Government guidance notes that operators who wish to participate in auctions from May 19, 2021, need to register with ICE Futures Europe for further information on the dates and times of auctions, as well as the number of allowances available at each auction.

From May 4, 2021, account holders with UK Kyoto Protocol Person Holding Accounts in the EU Registry will have their accounts and units migrated to the UK Registry. These account holders, as well as operators and aircraft operators, will be contacted by the registry administrator and asked to:

• provide details of a primary contact (a person authorized to give instructions on behalf of the account holder or operator to the registry); and
• nominate authorized representatives to manage the relevant registry account.

From late May 2021, the Registry will begin to accept applications for new UK Kyoto Protocol Person Holding Accounts, although the exact date for this is yet to be confirmed.

• Auctions

In February 2021, the UK Government published draft Auctioning Regulations and updated guidance for UK ETS participants. These confirmed that the auction reserve price for allowances would be higher than initially planned, at £22 per tonne of CO2 compared to £15.

This pricing appears to be established in order to minimize the risk of a significant fall in the UK carbon price, caused by a sharp price fluctuation due to the UK ETS market’s much smaller size than the EU’s, which could undermine confidence in the UK’s new system. Later in 2021, as part of its consultation on the UK ETS cap, the UK Government will consider withdrawing the auction reserve price.

Auctions will start as soon as feasible and no later than Q2 2021.

• Carbon Border Tax

Looking beyond the UK ETS, there is an open question from UK Government consultations and the White Paper on Energy that relates to whether the UK will introduce a carbon border tax, potentially similar to that currently being developed by the EU. It is expected that any tax would see penalties on goods imported from countries with weaker climate measures.

The UK Government is thought to be monitoring developments on such measures in the EU and potentially aiming to foster international agreement over such an adjustment when the UK hosts the G7 later in 2021.

• A Year in Transition

The UK Government has made no secret in its rhetoric that this is seen as an opportunity to develop an emissions trading scheme with greater ambition than the EU ETS. The UK’s greater ambition on the ETS cap mirrors its greater climate ambitions more widely, such as the UK Government’s loftier target of cutting emissions by 68% by 2030, compared to the EU’s 55% target.

2021 is therefore very much a year of consultation in this regard with a number of ongoing consultations and ‘calls for evidence’ already open on the UK ETS and its development.

Areas that the UK Government are likely to be considering, as was highlighted in the responses to the consultation, The future of UK carbon pricing, include setting a net-zero consistent emissions cap; reviewing the long-term role of free allowances; and considering the case for a supply adjustment mechanism. In the Energy White Paper published by the UK Government in December, there was also a reference to bringing more sectors of the economy within the scope of the scheme and exploring linking with other schemes internationally – potentially the EU ETS, as noted above and requested by a number of sectors.

There are no specific regulations limiting or encouraging this. However, since the UK ceased being a part of the EU customs union, the trade relationship between the UK and the EU is now governed by the UK-EU Trade and Cooperation Agreement and the relevant agreements of the World Trade Organisation. This represents a radical shift in the trading relationship and the practical implications for trade and transporting goods is more complex, for example:

• Although it remains as a general rule that tariffs are not charged on goods being traded, exporters must satisfy rules of origin requirements to qualify for preferential tariffs, which will create compliance costs.

Full customs checks are being applied to the movement of goods to the EU and will be eventually applied to the movement of goods to GB following the phased implementation of the UK’s border operating model.

• As UK and EU regulation is no longer harmonized, exporters will need to ensure compliance with different UK and EU product regulations.

There are no new regulations anticipated to encourage or limit the import/export, trade or transport of steel slags and applied products specifically. We expect that some changes may be made to imports/exports generally following the development of this area post-Brexit.