Download PDF
April 6, 2022

Lynn L. Bergeson Quoted by Chemical Watch in Article “How the US EPA has fired a ‘warning shot’ on enforcement of PFAS requirements”

Bergeson & Campbell, P.C.

On April 5, 2022, Chemical Watch quoted Lynn L. Bergeson, Managing Partner, Bergeson & Campbell, P.C. (B&C®), regarding the U.S. Environmental Protection Agency’s (EPA) recent policy interpretation on the fluorination of high-density polyethylene (HDPE) containers.

[‌I]n some respects, there has been little surprise at the agency’s view that the generation of certain PFASs during the fluorination of polyolefins – including polyethylene – is an activity covered under the 2020 long-chain perfluoroalkyl carboxylate (LCPFAC) TSCA significant new use rule (Snur).

The LCPFAC Snur has been around since 2020, so this is “hardly a new development”, says law firm Bergeson & Campbell. “That it could apply to substances in polyolefins is a predictable and logical extension of the rule, and the EPA’s letter is a reminder to stakeholders to be mindful of this fact.” 

Instead, the law firm says, the letter “is more a reflection of the agency’s commitment to its PFAS strategic roadmap than it is anything else”. 

Released last October, the ‘roadmap‘ for addressing PFASs sets out an agency-wide approach for researching, restricting and remediating the substance class. TSCA-specific actions outlined in the plan largely involve section 5 of the law – the new chemicals programme, where the agency’s Snur authority lies – to address both newly introduced and existing PFASs.


Actual test data proving the absence of the substances is “the most compelling”, says Lynn Bergeson, managing partner at Bergeson & Campbell. But “scientific explanations may suffice”. 

Looking further down the supply chain, container customers should also be aware of the LCPFAC Snur and might consider requesting certification from suppliers, Ms Bergeson adds. 

“It may be most expeditious to avoid fluoridated HDPE containers to avoid any potential supply chain issues related to PFAS.” 

Ms. Bergeson also weighed in on how this SNUR could apply to food contact issues, saying:

TSCA has specific exclusions for chemicals regulated by other statutes, including for food contact materials (FCMs). Correspondingly, if a manufacturer fluorinates an HDPE container for FDA use only, the Snur would not apply, Ms Bergeson says. 

However, the FDA has been taking steps of its own on the issue. In August 2021, the agency issued a letter reminding industry that only certain fluorination processes are acceptable – specifically by modifying the surface of a moulded container using fluorine gas in combination with gaseous nitrogen as an inert diluent. Its regulations do not authorise fluorination in the presence of water, oxygen or gases other than nitrogen, it said.

See – (subscription required)