37. The duties in the Netherlands

The Netherlands is a Member State of the European Union and has transposed Directive 2004/37/EC into the Arbeidsomstandighedenbesluit. The case of application dealt with here is not named as such there either. This section brings together the Dutch provisions in force and gives the source for every statement.

The term substance is neutral as to origin

Article 1.1 paragraph 5 letter b of the Dutch Arbeidsomstandighedenbesluit defines hazardous substances as “stoffen of mengsels waaraan werknemers bij de arbeid worden of kunnen worden blootgesteld die vanwege de eigenschappen van of de omstandigheden waaronder die stoffen of mengsels voorkomen gevaar voor de veiligheid of gezondheid kunnen opleveren”. The definition attaches to the exposure at work and to the circumstances in which they occur. Purchase, placing on the market and intended use do not appear in it. [219]

Article 4.2 paragraph 1 requires the assessment of the nature, degree and duration of the exposure, and does so expressly “ongeacht of met deze stoffen daadwerkelijk arbeid wordt of zal worden verricht”, that is irrespective of whether work with these substances is actually carried out. This assessment is part of the written Risico-Inventarisatie en -Evaluatie under Article 5 paragraph 1 of the Arbeidsomstandighedenwet. Under Article 4.2 paragraph 8 it is in any event to be reviewed where new work is begun in which hazardous substances are involved. [121, 218]

Article 4.1c paragraph 1 letter c requires that the exposure be prevented or minimised by “gebruik te maken van adequate voorzieningen bij het uitvoeren van reparatie- of onderhoudswerkzaamheden”. Letter j requires suitable working methods including arrangements for the safe handling, storage and transport of hazardous substances and of waste containing such substances. Paragraph 2 ties these measures to the state of science and technology. Letter c is the only place in section 1 of chapter 4 where repair and maintenance work is named. [219]

The additional duties for carcinogenic substances

Under Article 4.12, section 2 of chapter 4 applies in addition as soon as workers are or may be exposed to carcinogenic, mutagenic or reprotoxic substances “of aan stoffen die vrijkomen bij kankerverwekkende of mutagene processen”. The definition in Article 4.11 letter b attaches in point 1 to the classification criteria of Regulation (EC) No 1272/2008. Chromium(VI) compounds are thus covered. [219, 63]

Article 4.13 requires that, beyond the assessment under Article 4.2, seven items be entered in writing in the Risico-Inventarisatie. The first is “de reden waarom het gebruik van een kankerverwekkende, mutagene of reprotoxische stof of het toepassen van een kankerverwekkend of mutageen proces voor het verrichten van de arbeid strikt noodzakelijk is en vervanging technisch niet uitvoerbaar is”. There follow the annual quantity or the frequency of application, the nature of the work, the number of exposed workers, preventive measures, the protective equipment used and the cases in which replacement took place. The reasoning for the impossibility of a substitution is therefore part of the documentation. [219]

Article 4.17 requires technical and organisational measures which prevent the exposure at source as far as possible, in particular through replacement in so far as this is technically feasible. Article 4.18 paragraph 1 requires, for the case that this is not feasible, manufacture and use in a closed system; paragraph 2 names collective measures and local extraction, paragraph 3 personal protective equipment only after that, and paragraph 4 the limitation of the wearing time to what is strictly necessary. [109, 219]

Article 4.19 governs the accompanying duties. Letter a requires information or instruction that takes place at least once a year. Letter c requires the marking of hazard zones; the term is defined in Article 4.11 letter h as a place where workers are or may be exposed to such substances. Letter e requires effective means for the safe collection, storage and removal of waste, as far as possible in hermetically closed and clearly marked containers. Article 4.20 requires zones for eating and drinking without any risk of exposure, effective working clothing, its separate storage, and washing and shower rooms. [219]

The limit value of 0.001 mg/m³

The statutory limit value is set out in Bijlage XIII Part B2 of the Arbeidsomstandighedenregeling, the list of limit values laid down for carcinogenic substances according to the risk approach. The entry reads “Chroom (VI)-verbindingen (als Cr)” with 0.001 mg/m³ as a time weighted average over eight hours. A CAS number, a fifteen minute value and a skin notation are not entered. According to the explanatory note on Bijlage XIII, for substances which can occur as particles the value relates to the fraction sampled as inhalable dust. [220]

The value has applied since 1 March 2017. It was introduced by a regulation of the Minister for Social Affairs and Employment of 18 October 2016, which at the same time deleted the until then separate entries for barium chromate, calcium chromate, soluble and sparingly soluble chromium(VI) compounds, chromium trioxide, lead chromate, strontium chromate and zinc chromate. For chromium(VI) compounds the official explanatory memorandum names the estimate of the Dutch Health Council of 4 in 100,000 for 40 years of exposure to 0.01 µg/m³ and of 4 in 1,000 for 1 µg/m³. It describes 1 in 10,000 per year as the prohibition risk and records that the value is set at this maximum risk that is to be accepted. [221]

The same explanatory memorandum records that the introduction of the lower limit value leaves untouched the fact that individual companies have to replace the substance or achieve a lower exposure where that is technically feasible, and refers for this to Articles 4.17 and 4.18 of the Arbeidsomstandighedenbesluit. According to the official explanatory memorandum too, the limit value is therefore no benchmark whose observance makes the substitution check unnecessary. [221]

For the case dealt with here, Article 4.16 paragraph 2 is the central sentence. Where no statutory limit value exists for a carcinogenic substance or for a substance released during a carcinogenic process, the employer himself lays down “een zo laag mogelijke grenswaarde”. Where a limit value is exceeded, paragraph 3 requires effective measures without delay to bring it back below that value, and paragraph 5 requires that the plan of measures state how the excess is removed as quickly as possible. [219]

List of workers and forty years

Article 4.15 paragraph 1 requires a list of the workers who are or may be exposed to such substances, “onder vermelding van de blootstelling die zij hebben ondergaan”. Paragraph 2 gives every worker the right to inspect and copy the data concerning him. Article 4.10c paragraph 4 requires this list and the results of the occupational medical examination to be kept for at least 40 years after the end of the exposure. [219]

Article 4.10c paragraph 5 governs the case of the undertaking ceasing to operate. Where the activities are discontinued within these forty years, the documents are “overgedragen aan de toezichthouder”, that is handed over to the supervisory authority. The Dutch rule thus names the body to which the documents go; the German Hazardous Substances Ordinance does not govern this case expressly and instead provides for the transfer of the duties by transmitting the data to the accident insurance institution. [219, 197]

Supervision, fine and economic offence

Under Article 27 of the Arbeidsomstandighedenwet the Nederlandse Arbeidsinspectie may issue an eis tot naleving, that is determine with binding effect the manner in which a provision is to be complied with, together with a time limit. Article 9.22 of the Arbeidsomstandighedenbesluit allows this instrument for the articles of chapter 4 relevant here. Under Article 28 a supervisory officer may order that certain work be stopped or may not be started where in his reasonable judgment it constitutes a serious danger to persons; the power includes the sealing of work equipment and workplaces. [218, 219]

Breaches of the articles of chapter 4 named are subject to a fine under Article 9.9b paragraph 1 letter d of the Arbeidsomstandighedenbesluit. Under Article 34 paragraph 3 of the Arbeidsomstandighedenwet the maximum amount is that of the fifth category of Article 23 paragraph 4 of the Wetboek van Strafrecht, since 1 January 2026 110,000 euros. Where the same breach of duty is repeated within five years, the amount is increased by 100 percent under Article 34 paragraph 5. [108, 111, 219]

The Beleidsregel boeteoplegging arbeidsomstandighedenwetgeving quantifies the starting amounts. The complete failure to carry out the exposure assessment under Article 4.2 paragraph 1 is classified there as an overtreding met directe boete, that is subject to a fine without prior warning, with the fifth standard amount of 4,500 euros. Exceeding the limit value under Article 4.16 paragraph 3 is classified as a zware overtreding, with the sixth standard amount of 9,000 euros and the factor two. For Articles 4.1b, 4.1c, 4.17 and 4.18 the sixth standard amount likewise applies. The amounts apply to companies with 500 employees and more and are reduced in stages below that. [223]

Above the law on fines stands Article 32 of the Arbeidsomstandighedenwet. Under it the employer is prohibited from acting or failing to act contrary to the Act or the provisions based on it where, as he knows or must reasonably know, this gives rise to or is to be expected to give rise to danger to life or serious damage to the health of one or more workers. A breach of this is an economic offence under Article 1 of the Wet op de economische delicten and, where intentional, a serious criminal offence with a range of up to six years of imprisonment. For legal persons the fine may reach up to the next higher category under Article 23 paragraph 7 of the Wetboek van Strafrecht. [108, 110, 111]

None of the duties of chapter 4 for hazardous substances and for carcinogenic substances is classified as an ernstige overtreding. The exhaustive list in Article 9.10a paragraph 3 of the Arbeidsomstandighedenbesluit names from this chapter the provisions on asbestos, on propane sultone, on substance bans and on white lead. The warning with a subsequent stop-work order therefore applies to the duties dealt with here only after a repeated finding. [219]

Waste

The Regeling Europese afvalstoffenlijst declares the list in the Annex to Decision 2000/532/EC to be authoritative. For insulation material other than asbestos, 17 06 03* “overig isolatiemateriaal dat uit gevaarlijke stoffen bestaat of dergelijke stoffen bevat” comes into consideration, for furnace debris 16 11 03* and 16 11 05*, and for chromates as a substance 16 09 02*. Article 4 paragraph 1 assigns the waste to the entry marked with an asterisk where it is established that it has one of the properties of Annex III of the Waste Framework Directive. Paragraph 2 provides that the effects of evaporation, dilution, mixing or leaching are left out of account. [225, 214]

The burden of proof lies with the waste producer. The official explanatory note of the Informatiepunt Leefomgeving puts it as follows: “De Eural kent een omgekeerde bewijslast: zolang u niet kunt aantonen dat het geen gevaarlijk afval is, is het gevaarlijk afval.” Article 10.39 paragraph 1 letter a of the Wet milieubeheer requires the party handing the waste over to provide a description of its nature, properties and composition; Article 10.40 paragraph 2 prohibits the recipient from accepting it without this description and without an accompanying document. Article 10.54 paragraph 1 prohibits mixing, including dilution, during collection and transport. [225, 226]

The distance from the asbestos regime

Section 5 of chapter 4 governs asbestos separately. Article 4.54a paragraph 1 requires the presence of asbestos to be fully inventoried before the demolition or dismantling of structures or objects in which asbestos may reasonably be expected to have been used is begun; under paragraph 4 the inventory and the report are reserved to a certified company. Article 4.54d paragraph 1 requires for the removal from risk class 2 upwards a company with a certificate, and paragraphs 5 and 7 the competence certificates of the persons deployed. Article 4.47c paragraph 1 requires notification to the supervisory authority at the latest two days before the work begins. Article 4.51a requires, before the hazard zone is lifted, a final assessment with a visual inspection and a measurement against the value of 10,000 fibres per cubic metre. [121, 224]

For chromium(VI) none of these points exists. There is no prior inventory, no certification requirement, no notification before work begins, no final assessment and no system of risk classes. The list under Article 4.15 and the forty year period under Article 4.10c correspond to the register that section 5 provides for asbestos. [219, 224]

The Dutch chroom-6 complex

In the Netherlands chromium(VI) has had a public history of its own since 2014. On behalf of the Paritaire Commissie Chroom-6, the Rijksinstituut voor Volksgezondheid en Milieu examined the sites of the Ministry of Defence and reported in 2018 and in 2021, and in further studies the workshops of NS and NedTrain and the reintegration project tROM in Tilburg. For those affected at the Ministry of Defence a state compensation scheme has existed since 2018. [227, 228, 229, 231]

The subject of these studies is chromate-containing paints and primers and the work on them. The question put by the Paritaire Commissie is related in the report of 2021 to “chroom-6-houdende verf of verfstof”. The report on NS and NedTrain begins with the sentence that old paint layers on some trains contain chromium(VI). The report on Tilburg describes the removal of old paint layers on museum trains. The compensation scheme lists in Annex 2 the activities relevant to assessment; the only item not related to paint is “lassen of snijbranden van roestvast staal”. [227, 228, 229, 231]

A full text search of the five main reports for the Dutch terms for insulation, insulation material, mineral wool, stone wool, glass wool and heat protection gives no hits. The most extensive public chromium(VI) complex in Europe has not covered the formation pathway dealt with here. [227, 228, 229]

What is not published in the Netherlands

Calcium chromate and sodium chromate are named on the SZW-lijst of the carcinogenic substances, last published on 9 July 2026. The list describes itself as not exhaustive and states which substances and processes are in any event meant in Article 4.11 of the Arbeidsomstandighedenbesluit. The accompanying list of the carcinogenic processes contains ten items, from the manufacture of auramine to emissions in iron and steel founding; a process involving chromate formation is not among them. The processes determined nationally under Article 4.20c of the Arbeidsomstandighedenregeling likewise cover only diesel engine emissions and two mixtures of substances. [222, 220]

The report that the Ministry for Social Affairs and Employment commissioned specifically for an overview of the chromium(VI) applications at the workplace attributes the exposure on refractory linings of furnaces and boilers to chromium(VI) present in the material, to raw materials and to additions. The thermochemical formation on chromium-alloyed steel through basic oxides from the insulation material does not appear there, not even as a hypothesis. The report closes its overall survey with the note that for the fields of the maintenance of old installations, demolition and waste treatment of ceramic products and certain work of the primary metals industry no information was obtained, “geen informatie over verkregen”. [230]

The publications of the Ministry and of the Nederlandse Arbeidsinspectie name as sources of exposure the removal of old paint layers, the manufacture of chromates, chromium plating, certain types of cement, the grinding and welding of chromium-containing surfaces and impregnated wood. The Beheersregime chroom-6 carries the subtitle “Toe te passen arbeidshygiëne bij het werken aan verven en coatings” and, according to its own footnote, is limited to paint dust from treated painted surfaces. The topic page of the Arbeidsinspectie names work on chromium-containing metals and coatings and at the same time records: “Een negatieve uitslag is echter niet genoeg om te besluiten om géén maatregelen te nemen.” [232, 233]

The Beleidsregel arbocatalogi 2019 lists the sector catalogues examined by the Arbeidsinspectie. The line “Installatie- en isolatie” names as the provisions relied on, among others, Articles 4.11 to 4.20 of the Arbeidsomstandighedenbesluit, that is the provisions for carcinogenic substances. As hazardous substances the same line names asbestos and quartz dust. Chromium(VI) does not appear there. [234]

This is a statement about the body of material examined. It does not refute the duties. The definition in Article 1.1 paragraph 5, which is neutral as to origin, the wording “ongeacht of met deze stoffen daadwerkelijk arbeid wordt of zal worden verricht” in Article 4.2 paragraph 1 and the formula “stoffen die vrijkomen bij kankerverwekkende of mutagene processen”, used throughout section 2, also cover chromates that have arisen unintentionally. What is missing is the naming of the formation pathway. [219, 121]

What follows from this for a company in the Netherlands

From the provisions named there follows a set of documents that can be examined. These include the written assessment under Article 4.2 paragraph 1 for the material pairing of chromium-alloyed hot component and basic insulation material, and the seven items under Article 4.13 including the reasoning why a substitution is not technically feasible. They include the limit value laid down by the employer under Article 4.16 paragraph 2, in so far as no statutory value applies. They include the list under Article 4.15 with its forty year retention, the annual instruction under Article 4.19 letter a and the description of the waste under Article 10.39 of the Wet milieubeheer. [121, 219, 226]

The complete failure to carry out the assessment is the only one of these points that is subject to a fine without prior warning. All the others presuppose a finding and a time limit. The distance from the asbestos regime lies in the procedure that triggers the duties. The duties themselves stand in the wording and apply without the case having first been named. [223, 224]