Thomas (Tom) Berger’s practice is based on in-depth understanding of and experience with the chemicals, plastics, and electronics industries. As a preeminent practitioner with over 30 years of experience, Tom helps clients commercialize new chemical products and preserve supply chains for existing chemical products utilizing an interdisciplinary team approach combining law and science, with an emphasis on emerging technologies in the industrial and consumer chemicals areas.
Tom’s practice focuses almost exclusively on the Toxic Substances Control Act (TSCA). Tom leads clients through the TSCA section 5 premanufacture notification (PMN) approval process and negotiates the terms of resulting section 5(e) orders and significant new use rules (SNURs). He provides counsel to clients on major U.S. Environmental Protection Agency (EPA) enforcement matters, assists companies in preparing for compliance inspections and responding to information requests and subpoenas, and defends Agency enforcement actions.
As an active member of the environmental and chemical industries and legal community, Tom was extensively involved in efforts to “reform” TSCA, and has in-depth and day-to-day experience with all aspects of TSCA, including rulemaking/advocacy, test rule/order, section 5 PMN, TSCA Inventory, Chemical Data Reporting (CDR), and section 6, as well as confidential business information (CBI), section 8 recordkeeping and reporting, and import/export issues.
Tom’s technical background allows him to undertake matters that involve complex chemistry, chemical nomenclature, and chemical engineering issues. Tom co-authored an amicus curiae brief for the United States Supreme Court in Hoechst Celanese v. United States, 128 F.3d 216 (4th Cir. 1997), as well as four technical papers on polychlorinated dibenzo-p-dioxins and furans (“dioxin”).
Tom is a recognized leader in conducting extensive voluntary TSCA compliance audits, often conducted as part of corporate mergers or acquisitions. Since its inception in 1995, Tom has assisted hundreds of clients successfully utilize EPA’s “Audit Policy” (as well as the “New Owner Policy”) to disclose and obtain up to 100% gravity-based monetary penalty mitigation for a wide variety of TSCA violations.
Tom is a frequent lecturer and author on chemical notification, chemical regulation, liability management, auditing, enforcement, and TSCA reform issues, and is regularly quoted as an expert in the trade press. He was a contributing author of Environmental and Workplace Safety, A Guide for University, Hospital, and School Managers (Van Nostrand Reinhold, 1996).
Tom has a Chemical Engineering background, and, prior to joining Keller and Heckman, worked as an engineer for a major international chemical manufacturing company.
Representative Matters
- Obtained approvals for hundreds of PMNs, including PMNs for nano-materials, cathode active materials (CAM), PFAS, and other chemicals in EPA “Concern” categories
- Obtained TSCA section 5(a)(3)(C) (“not likely to present”) approval
- Organized and supervised numerous multi-site, multi-year comprehensive TSCA compliance audits
- Negotiated large multi-party TSCA settlement with EPA, with an Agency grant of continued production of an industrial chemical critical to the U.S. economy
- Obtained dozens of multi-million-dollar civil penalty mitigations for TSCA violations under EPA “Audit Policy”
Memberships
- American Bar Association (ABA), Pesticide, Chemical Regulation, and Right-to-Know Committee