Environment Canada appears to be stepping back from its ambitious goal of the virtual ban of benzenamine, N-phenyl-, reaction products with styrene and 2,4,4-trimethylpentene (BNST) in Canada.

By 2013, BNST was assessed as “toxic” under the Canadian Environmental Protection Act, 1999, and included within the Prohibition of Certain Toxic Substances Regulations, 2012. Under the Toxic Substances Regulations, the use of BNST as an additive in lubricants was temporarily allowed until 2015. Other industry uses of BNST were similarly phased out by the Toxic Substances Regulations.

Companies continuing to use BNST as a lubricant, mainly in the automotive and electronic equipment industries, were required to obtain temporary permits to allow for continued BNST use until no later than March 14, 2018. In order to obtain the time-limited permit, companies were required to satisfy Environment Canada both that:

  • immediate alternatives to BNST for their products were not readily available; and
  • the company had a plan to phase out BNST by no later than the 2018 deadline.

BNST has continued to be used in replacement parts and legacy equipment in the automotive sector (including as a hydraulic brake system lubricant), as well as the electrical and electronic equipment sector (including as a motor fan lubricant) and alternatives have not become as readily available as anticipated. Once Environment Canada became fully aware of industry concerns that legacy equipment would be prematurely retired due to a shortage BNST-free replacement parts and replacement equipment alternatives were few, it circulated draft amendments to the Toxic Substances Regulations. which will:

  • allow for the manufacture, import, use, sale and offer for sale of BNST as an additive in lubricants found in replacement parts; and
  • permit the manufacture, import, use, sale and offer for sale of BNST used as an additive in lubricants until March 14, 2025.

Environment Canada is seeking comments on the draft amendments by January 19, 2017, which will also allow industry a last chance to seek BNST use extensions for other products and activities.

Jonathan Cocker heads the Firm’s Environment & Environmental Markets Practice Group in Toronto, where he also serves as chair of the Pro Bono Committee. He authored the Global Climate Change Law Guide, and has worked with the Management Board Secretariat of the Government of Ontario. Mr. Cocker has represented a wide range of clients before various administrative boards, the Superior Court of Justice and the Federal Court of Canada, among others.