Lynn L. Bergeson Quoted in Bloomberg Law Article “EPA’s Final PFAS Data Rule Seen as Ripe for Industry Challenges”

On October 10, 2023, comments by Lynn L. Bergeson were featured in Bloomberg Law’s article on the U.S. Environmental Protection Agency’s (EPA) decision to require companies to report extensive information about per- and polyfluoroalkyl substances (PFAS) in their merchandise.

Not every attorney thinks the rule could be legally vulnerable.

The regulatory burden, especially on small business entities, is high, and the scope of the reporting obligation is “insanely broad,” said Lynn L. Bergeson, managing partner of Bergeson & Campbell PC, which specializes in chemical regulations. The agency is expecting a tremendous amount of effort from a broad swath of the economy even though many entities are unlikely to have the useful information the agency seeks, she wrote in a regulatory analysis.

Still, “I am straining to see legal error,” because the agency also made accommodations, she said.
Companies that import articles or make small amounts of PFAS for research and development can submit a more streamlined reporting form than the longer version required for other PFAS manufacturers, according to the EPA’s final rule.

The “not known or reasonable ascertainable” option also is there to assist, she said.

Some trade associations may seek to petition a court to review the rule and a lawsuit could be cathartic, but “I question the wisdom and utility of a legal challenge,” Bergeson said. “There are many other TSCA issues worthy of judicial challenge; this one is not on my list.”