Lynn L. Bergeson Quoted by Finishing and Coating in Article “Hiding in Plain Sight: PFAS May Enter Shop on Customer Parts”
Lynn L. Bergeson, Managing Partner, Bergeson & Campbell, P.C. (B&C®), was quoted in the January 2023 issue of Finishing and Coating regarding the presence of per-and polyfluoroalkyl substances (PFAS) in materials used around the electroplating process.
“We live in a brave new world indeed,” says Lynn Bergeson, an attorney, and managing partner at Bergeson & Campbell, a firm in Washington D.C. that has been representing businesses in cases brought by the U.S. EPA for several decades.
“We all are beginning to appreciate the ubiquity of PFAS in items/articles/products of all sorts and of which we were unaware,” Bergeson says. “In light of EPA’s PFAS Strategic Roadmap, the manufacturing and related business sectors can expect enhanced scrutiny of effluent with regard to the possible presence of PFAS.”
Bergeson says the U.S. EPA and state regulatory agencies are laser-focused on blunting further water and groundwater contamination, and she “would expect such scrutiny to increase, not abate.”
Business entities need to query their upstream suppliers, Bergeson says, and ask about the chemical components of the materials they are receiving. Supplier certifications will help identify the source of the PFAS as a first step. Depending upon the source, she says finishers can make informed judgments about their customer’s supplier and whether an alternative supplier can provide the item without PFAS.
“The process is tedious but essential,” Bergeson says. “Without undertaking the requisite due diligence, finishers can stumble their way into multi-party litigation for liability arising from property contamination, tort liability/personal injury, contractual liability — such as failure to warn, fitness for purpose, etc. — not to mention reputational injury, diminution on stock value, and related business challenges.”
Finishers should review their customer agreements to make sure they disallow any PFAS — whether intentionally added or otherwise — in products procured under those agreements.
“At the least such contractual provisions help shift liability and provide defenses,” Bergeson says. “Businesses also need to be mindful of the complexity of these issues and remain informed. Detractors will never be persuaded that ignorance is a compelling defense.”
While part contamination is a fairly new phenomenon that platers have to worry about when it comes to PFAS, the legacy use of PFAS has been a constant issue for many shops that used fumed suppressants years ago in — at the time — was a safety feature.
Living up to its term as the “forever chemicals,” shops now worry they can never rid themselves of PFAS in their tanks and wastewater treatment because it stays there for seemingly forever.