Notice of objection filed by Hyundai Automotive Canada Corp. and Minister’s response to the Notice of objection

Minister's response to Hyundai Automotive Canada Corp.

Notice of objection

July 13, 2022
Christina Paradiso
Executive Director Chemicals Management, Environmental Protection Branch
Department of the Environment
351 Saint-Joseph Boulevard, Gatineau, Quebec K1A 0H3

Email: ec.interdiction-prohibition.ec@ec.gc.ca

Re: Notice of Objection and Request for Board of Review in relation to proposed regulations* prohibiting the manufacture, use, sale and import of decabromodiphenyl ethane (DBDPE, CAS Registry Number 84852-53-9)

*Canada Gazette, Part I, Volume 156, Number 20 – May 14, 2022: Prohibition of Certain Toxic Substances Regulations, 2022

Dear Ms. Paradiso:

Hyundai Auto Canada Corp. (“Hyundai”), which includes Genesis Motors Canada, is taking the extraordinary step of submitting this Notice of Objection to the regulatory proposal published in the Canada Gazette on May 14^th, 2022 which includes, amongst the proposed amendments to the Prohibition of Certain Toxic Substances Regulations, highly targeted measures against the manufacture, use, sale and import of DBDPE.

Hyundai notes the proposed risk management measures as set out in the proposed Prohibition of Certain Toxic Substances Regulations, 2022 (the “draft Regulation”) for DBDPE are not replicated elsewhere in the world, and far exceed anything thus far proposed in terms of banning of the substance from manufacture and commerce. The automotive industry, including Hyundai, has made a consistent effort over the past three plus years to inform the department of the critical importance of this substance; DBDPE is a vital and broadly used additive to many materials in use in automobiles and automotive parts and provides protection from fire to drivers and occupants in hundreds of millions of vehicles worldwide.

Proposed restrictions on the other named substances notwithstanding, Hyundai considers the measures concerning DBDPE to be wholly incompatible with the current state of its broad global usage. Hyundai’s primary concerns, which underpin the filing of this Notice of Objection, and the resulting request for formation of a Board of Review to thoroughly assess the risks posed by the appropriateness of the respective proposed amendments affecting DBDPE, are outlined below:

1. Potential for severe negative impact to public safety as a result of the lack of available substitutes:

• DBDPE serves an essential function by controlling the flammability of the products where it is used and therefore saves lives.
• DBDPE is used extensively in wiring, tape adhesives, seat foams, and lacquer on labels and cables, which affects thousands of parts per vehicle. The need for a fully validated and capable fire retardant is immutable.
• To address the elimination of DBDPE requires extensive validation of a multitude of regulations, durability studies and performance criteria for each and every part number affected in each and every vehicle for each and every manufacturer.

2. Insufficient timelines to develop, qualify and implement potential substitutes in sufficient volume to address broad scope of applications:

• Each manufacturer has thousands of parts affected by the proposed regulations. There are, at present, no other acceptable alternatives to DBDPE that offer the necessary level of performance characteristics.
• The timelines for qualifying substitute candidates on a part-by-part basis for integration into production plans of new models and, critically, existing models, uniquely for the Canadian market is estimated at 15-years, well in excess of the proposed timing.

3. Proposed permitting process is not adequate to address lack of viable alternatives to DBDPE:

• The proposed permitting process is not workable for the automotive industry due to the sheer number of parts affected, associated burden and the fact that they OEMs would not be able to use this mechanism for the purpose of additional development time (per ECCC consultation).

4. Trade and supply-chain disruption arising from global non-alignment caused by decision to pursue independent Risk Management measures:

• Automobile manufacturers operate in a global regulatory environment. The scope of use of DBDPE in the industry is such that it cannot be substituted across the global supply chain without a substantial lead time for new parts.
• The Canada-US-Mexico Agreement obliges parties to the agreement to not introduce unnecessary barriers to trade, but to make efforts to align risk-assessment methodologies and risk management measures for chemical substances.
• At present, the United States Environmental Protection Agency (U.S. EPA) is not proposing either Risk Assessment or Risk Management of DBDPE.
• The Stockholm Convention on Persistent Organic Pollutants is similarly absent of DBDPE with respect to the chemicals listed in its Annexes.

Hyundai is greatly concerned with the proposed regulatory Risk Management measures for DBDPE. It is not sufficient for the Department to simply “hope” that industry will come up with a viable alternative to DBDPE, while putting an effective end to its use over a very short timeline in the context of vehicle development cycles. Automobiles are highly complex manufactured items. Under CEPA 1999, as the industry has made clear on many previous occasions, there is a responsibility on the part of the government to ensure that industry has viable alternatives to use that will allow them to fulfill ALL of their regulatory obligations.

Given the current lack of available alternatives for DBDPE and unknown costs of compliance with the regulatory proposal, we urge the Department to revise its risk management approach in regulating DBDPE to, first, engage other jurisdictions in global-focused chemicals management approach and, secondly, ensure the industry has adequate time to work with its supply chain partners to properly develop and implement workable alternatives.

We thank you for your consideration of the arguments set out above and add that we are fully supportive of the more extensive submission by the Global Automakers of Canada (GAC).

We request that the Minister appoint a Board of Review to inquire into the risks posed by DBDPE and the appropriateness of the respective proposed amendments to the PCTSRs.

Sincerely,

Geof Bailey
Safety and Compliance Officer
Hyundai Automotive Canada Corp.

Minister's response

Mr. Geof Bailey
Safety and Compliance Officer
Hyundai Automotive Canada Corp.
gbailey@hyundaicanada.com; ckaskavaltzis@hyundaicanada.com; irenekim@hyundai.com;
tunger@hyundai-europe.com; dromano20@hyundaicanada.com

Dear Mr. Bailey:

This letter is in response to your Notice of Objection and request to establish a board of review to the publication of the proposed Prohibition of Certain Toxic Substances Regulations, 2022 (proposed Regulations), which was received by Environment and Climate Change Canada on July 13, 2022. The proposed Regulations were published in the Canada Gazette, Part I, on May 14, 2022.

I have carefully considered all the issues in your Notice of Objection, including those dealing with the nature and extent of the danger posed by decabromodiphenyl ethane (DBDPE) and the other questions and considerations that you brought to my attention. In my opinion, your Notice of Objection does not raise sufficient uncertainty or doubt in the science underlying the proposed Regulations that would warrant the establishment of a board of review under subsection 333(1) of the Canadian Environmental Protection Act, 1999 (CEPA). Therefore, I am denying your request, and I will not establish a board of review. The reasons for my decision are explained below and in the Annex to this letter.

Responses to comments in your Notice of Objection related to the outcomes of the screening assessment for DBDPE, which concluded that there is a risk of harm to the environment due to the persistence and widespread occurrence of DBDPE in the environment along with the potential for bioaccumulation and toxicity of its transformation products, are provided in the Annex.

The comments in your Notice of Objection regarding the development of the proposed Regulations have been considered alongside other comments received on these regulations. The specific points you have raised on the proposed Regulations and how they will be addressed are also summarized in the Annex to this letter. Your Notice of Objection raised specific concerns on the proposed exemptions for DBDPE, and to address these concerns, the proposed timeline of the DBDPE exemptions will be extended by an additional 10 years (i.e. extended from 5 years to 15 years for new products and from 20 years to 30 years for replacement parts) and the scope of these exemptions will be broadened to include all manufactured items and additional intermediate materials. This extended timeline will allow all stakeholders additional time for the research and development of alternatives, testing and certification, and transitioning their manufacturing and supply chains. Broadening the scope of the DBDPE exemptions will help to reduce the risk of prohibiting critical components, reduce the need to apply for permits under the proposed Regulations for non-exempted parts, and reduce compliance burden of stakeholders throughout the supply chain.

Please note that the comments on the proposed Regulations will be summarized in the Regulatory Impact Analysis Statement that will be published with the final Prohibition of Certain Toxic Substances Regulations, 2025 (2025 Regulations) in the Canada Gazette, Part II, which describe how these matters have been addressed.

I appreciate your bringing your concerns to my attention. Please accept my best regards.

Sincerely,

The Honourable Julie Dabrusin, P.C., M.P. (elle/she/her)

Annex

1) The following provides a summary of comments related to “Potential for severe negative impact to public safety as a result of lack of available substitutes” as set out in your Notice of Objection and the analysis of the information you have provided:

In your Notice of Objection, you commented that DBDPE is used as a flame retardant to meet critical flammability standards and safety requirements in products such as motor vehicles including wiring, tape adhesives, seat foams, and lacquer on labels and cables. In addition, you commented that replacing DBDPE in every affected part requires extensive validation of a multitude of regulations, durability studies and performance criteria in every vehicle from every manufacturer.

Flame retardant substances are generally used to meet performance-based flammability requirements. These requirements do not specify what chemical flame retardants need to be used; rather they may require a product or component to pass a laboratory test such as a cigarette smolder or open flame ignition test (ASTM 2014). Using chemical flame retardants such as DBDPE in products is one of the ways by which companies can meet flammability requirements for their products. Alternate substances as well as non-chemical-based alternatives may also be used to replace the use of DBDPE as a flame retardant in various applications.

In addition to the concerns you have raised in your Notice of Objection, a number of similar comments were received during the public comment period for the proposed Regulations. To address these concerns, the proposed timeline of the DBDPE exemptions will be extended by an additional 10 years (i.e. extended from 5 years to 15 years for new products and from 20 years to 30 years for replacement parts) and the scope of the DBDPE exemptions will be broadened to include all manufactured items and additional intermediate materials. This extended timeline will allow all stakeholders additional time for the research and development of alternatives, testing and certification, and transitioning their manufacturing and supply chains. Broadening the scope of the DBDPE exemptions will help to reduce the risk of prohibiting critical components, reduce the need to apply for permits under the Regulations for non-exempted parts, and reduce compliance burden of stakeholders throughout the supply chain.

2) The following provides a summary of comments related to “Insufficient timelines to develop, qualify and implement potential substitutes in volume to address broad scope of applications” and “Proposed permitting process not adequate to address lack of viable alternatives to DBDPE” as set out in your Notice of Objection and the analysis of the information you have provided:

In your Notice of Objection, you provided comments that there are currently no acceptable alternatives to DBDPE offering the necessary level of performance characteristics and each manufacturer has thousands of parts affected by the proposed risk management. Furthermore, you commented a minimum of 15 years is required to switch to an alternative substance with minimal supply chain disruption and that the proposed permitting system is not suitable for the automotive sector due to administrative burden.  

Please refer to the response to point 1 (above) respecting the extended timeline for, and broadened scope of the DBDPE exemptions.  

The permit process is intended to deal with unforeseen challenges at the coming into force, for activities that are not covered by an exemption. When there are known challenges, exemptions have been included under the Regulations. Permits are not required for activities that are exempted following the coming into force of the 2025 Regulations and are not intended to extend the time-limited exemptions already granted in the proposed Regulations.

3) The following provides a summary of comments related to “Trade and supply-chain disruption arising from global non-alignment caused by decision to pursue independent risk management measures” as set out in your Notice of Objection and the analysis of the information you have provided:

3A) In your Notice of Objection, you provided comments that automobile manufacturers operate in global regulatory environment and a substantial lead-time is needed substitute DBDPE across the length and breadth of the global supply chain.    

Please refer to the response to point 1 (above) respecting the extended timeline for, and broadened scope of the DBDPE exemptions.  

3B) In your Notice of Objection, you commented that the U.S.-Mexico-Canada Agreement (USMCA) obliges parties to not introduce unnecessary barriers to trade but to align risk-assessment methodologies and risk management measures for chemical substances.  

The DBDPE screening assessment concludes that DBDPE is toxic, persistent and results predominantly from human activities and that DBDPE is expected to contribute to the formation of persistent, bioaccumulative and inherently toxic transformation products, such as lower brominated diphenyl ethanes, in the environment. As such, at the time the risk management approach for DBDPE was published, DBDPE met the criteria outlined in the Government of Canada’s Toxic Substances Management Policy for virtual elimination from the environment (Canada, 1995).

Upon the coming into force of the Strengthening Environmental Protection for a Healthier Canada Act (S.C. 2023, c. 12) in June 2023, the virtual elimination provisions of CEPA were replaced with a new regime that remains risk based. In developing a proposed regulation or instrument respecting preventive or control actions in relation to substances added to Part 1 of Schedule 1 of the Act, priority will be given to the total, partial or conditional prohibition of activities in relation to the substance or of releases of the substance into the environment. For substances added to Part 2 of Schedule 1, priority will be given to pollution prevention actions, which may include prohibition, when managing risks posed by those substances.

An Order adding DBDPE to Part 2 of Schedule 1 to the Canadian Environmental Protection Act, 1999 was published in the Canada Gazette, Part II, on February 26, 2025.

As indicated in the risk management approach for DBDPE, the environmental objective for DBDPE is to reduce its concentrations in the Canadian environment to the greatest extent practicable, and the risk management objective for DBDPE is to achieve the lowest level of release of the substance into the Canadian environment, taking into account social, economic and technical matters.

The high importation volumes of DBDPE into Canada, along with information on its uses, indicate potential for widespread release into the Canadian environment. Aquatic exposure to DBDPE is expected through activities such as formulation, either directly to receiving surface water or to a wastewater treatment system that discharges its effluent to a receiving surface water body. In addition, products containing DBDPE have the potential to release DBDPE at various stages of their lifecycle, including use (see house dust studies referred to in Section 10.1.1.2 and Appendix D of the DBDPE screening assessment) and disposal. Once released into the environment, DBDPE will be found mainly in sediment and soil, where it may persist for long periods of time, resulting in DBDPE build-up, as seen by rapid doubling times in sediment in the Great Lakes. 

Given the above, regulatory prohibition is the best approach to meet the risk management objective for DBDPE, which is to achieve the lowest level of release of the substance into the Canadian environment, taking into account social, economic and technical matters.

Furthermore, there is nothing in the 2025 Regulations that contravenes the USMCA Agreement given that the addition of DBDPE to the Regulations reflects a risk-based approach based on the conclusion of the screening assessment of DBDPE.

3C) In your Notice of Objection, you commented that DBDPE is not listed as a Persistent Organic Pollutant under the Stockholm Convention nor proposed for assessment or new restriction by the United States Environmental Protection Agency.  

Canada has been one of the first countries to lead action on flame retardants and was the first country to complete a risk assessment and propose risk management of DBDPE; however, Canada is not alone and since then international action for DBDPE has been underway or has been finalized. 

In March 2023, the European Union (EU), under the European Chemicals Agency (ECHA) published their Regulatory strategy for flame retardants, which has a focus on brominated flame retardants and their prioritization for restriction, including DBDPE. This document noted that:

For decabromodiphenyl ethane (EC 284-366-9, DBDPE) data was requested regarding potential bioaccumulation under substance evaluation and has been assessed by the PBT expert group. The available data, including field studies, appear to confirm the Persistent, bioaccumulative and toxic (PBT) properties of the substance.

Furthermore, on October 31, 2024 ECHA updated the substance evaluation status for DBDPE as “Concluded” and published a Substance Evaluation Conclusion and Evaluation Report that considers DBDPE to meet the Regulation on the registration, evaluation, authorisation and restriction of chemicals (REACH) Annex XIII very persistent and very bioaccumulative criteria, wide dispersive use and high aggregated tonnage concerns and the need for follow-up regulatory action at the EU level. The report notes the restriction of aromatic brominated flame retardants as proposed in ECHA’s Regulatory strategy for flame retardants appears as a logical continuation following a formal hazard identification as very persistent and very bioaccumulative for DBDPE.

On June 27, 2025, ECHA published a proposal for identification of DBDPE as a substance of very high concern (SVHC) on the basis of the criteria set out in REACH Article 57. A REACH Annex XV report was prepared by Sweden to support the proposal for identification of DBDPE as a SVHC.

In the United States (US), DBDPE is listed as a new chemical and is subject to a Significant New Use Rule, which requires manufacturers and processors to notify the US Environmental Protection Agency (EPA) before a new use for the manufacture, import or processing of DBDPE begins. In June 2021, the EPA made DBDPE subject to a Final Health and Safety Data Reporting rule pursuant to the Toxic Substances Control Act (TSCA) as part of a grouping of 30 organohalogen flame retardants being evaluated for risks by the Consumer Product Safety Commission (CPSC). In January 2024, the CPSC published Organohalogen Flame Retardant Scope Document: Polyhalogenated Benzene Aliphatic and Functionalized Subclass report (the PHBzAF subclass, which includes DBDPE) which concludes that “the PHBzAF subclass has sufficient data to proceed with risk assessment”. Furthermore, DBDPE is restricted in some consumer products under general flame retardant restrictions in some states, such as California, Maine, and New Hampshire.

In August of 2021, Australia published their assessment of DBDPE and found that DBDPE:

meets the persistence, bioaccumulation, adverse effects in aquatic and terrestrial organisms and long-range transport criteria of Annex D of the Stockholm Convention on Persistent Organic Pollutants. Therefore, on the basis of the current hazard information available, the assessed chemical could pose an unreasonable risk to the environment. 

The Australian report also recommended control measures be developed under the Industrial Chemicals Environmental Management (Register) Act 2021.

On June 26, 2025, the Australian government finalized its risk management for DBDPE after publishing a statutory public consultation on the proposed risk management for DBDPE in April 2025. The Industrial Chemicals Environmental Management Standard for decabromodiphenyl ethane (DBDPE) is a final scheduling decision to list DBDPE to Schedule 6 of the Industrial Chemicals Environmental Management (Register) Instrument 2022. Schedule 6 of this instrument lists “Relevant industrial chemicals that are likely to cause serious or irreversible harm with essential uses” and specifies the risk management measures, including prohibitions and restrictions, that apply to the relevant industrial chemical or a mixture or article containing such a chemical (Australia, 2025).

Canadian risk management for DBDPE takes into consideration actions taken in jurisdictions, including the EU and the US, with the possibility of aligning where appropriate.