Update July 12, 2024. Chevron Doctrine Overturned

As many of you know, the Supreme Court dealt a major blow to the EPA and all other out-of-control federal agencies last month in Loper Bright Enterprises v. Raimondo, which overruled the 40-year-old “Chevron doctrine”, which allowed federal agencies to fill in the details of their powers—which, predictably, always resulted in agencies choosing to expand their power.

Under the new rule, courts are now instructed to rule on agency powers by using the court’s own judgment about whether a federal agency is right, wrong, or overstepping their authority—instead of deferring to the agency’s interpretation (as courts were previously required to do under the Chevron doctrine).

This new position does not mean that Berkey International is guaranteed to win its case, but the Supreme Court’s new instruction certainly favors our efforts to fight against the EPA’s attempt to selectively redefine Berkey water filters as a “pesticide” without the required notice or any formal change process (as defined by law in the “APA”, or Administrative Procedure Act) to include Berkey after 25 years of operating without any regulatory interference.

While courts may now be provided the power to act, one never knows if judges now empowered with this new authority will elect to use it. In our case, Judge Camille Velez-Rive heard Berkey International’s request for an injunction in April 2024 (more than three months ago), but has not yet ruled. Berkey International will be filing a request for a status conference in the next few days, and ask the court to act on our requested injunction and, in effect, take the Supreme Court’s overturning of the Chevron doctrine into consideration in support of our case.

Congress should engage the EPA and ask for justification of its unwarranted attack on Berkey, the nation’s most trusted provider of gravity-fed household and outdoor water filters. As well, judges should recognize the Supreme Court’s most recent ruling that pushes back on agency overreach and gives courts the authority to enforce the law and act in the best interests of the American people and American business.

March 13, 2024 Berkey Files Additional Suit Against EPA in Federal Court

March 6, 2024 – Berkey International has filed a lawsuit against the Environmental Protection Agency (EPA) for misclassifying Berkey Water Filters as pesticides, and is seeking an injunction to lift the EPA’s Stop-Sale orders (SSURO) issued to NMCL dealers, vendors, and Berkey International’s manufacturing facility located in San Juan, Puerto Rico.

Berkey International supplies Berkey® Water Systems to New Millennium Concepts, Ltd (NMCL). NMCL is the sole wholesale distributor of Berkey® Water Systems globally. The Stop-Sale order (SSURO) placed on this facility by the EPA has tied up significant inventory and resources needed to meet the demand of Berkey® customers throughout the world and has created a shortage of Berkey® water systems and products globally.

This lawsuit is in addition to a third-party lawsuit filed in the North Texas District Court in August 2023 by NMCL and the James B. Shepherd Trust (JBST), which owns Berkey’s intellectual property. That lawsuit was dismissed for “lack of standing” as the Court determined that neither NMCL nor the JBST had been harmed by the EPA’s issuing of SSUROs to NMCL dealers and suppliers. In November 2023, an appeal was filed in the Fifth Circuit Court of Appeals because in the view of the Plaintiffs, the Court failed in its requirement to accept all well-pleaded facts as true and view them in the light most favorable to the Plaintiff. While the Court of Appeals denied the motion for an immediate injunction, the lawsuit has not been dismissed and is still active in the Court of Appeals.

Berkey International has now filed an additional lawsuit against the EPA, which cannot be dismissed for “lack of standing”, as an SSURO (Stop-Sale order) was issued to Berkey International. While no one can ever predict what a federal court will do, we are hopeful for an injunction from the District Court Judge in Puerto Rico.

Though Judge Mark T. Pittman (TX) initially dismissed the case due to “lack of standing”, he stated, “In finding that standing is lacking in this case, the Court is in no way disparaging, or opining on, Plaintiffs’ claims. Indeed, if true, the claims are quite concerning.” By this statement, it appears Judge Pittman recognized a real dispute warranting judicial attention.

The new lawsuit can be found here: https://support.berkeywater.com/wp-content/uploads/2024/03/Berkey-Int-Lawsuit-Complaint-against-EPA-3-6-2024.pdf

January 30, 2024 Update on Berkey Court Case vs. EPA

As was previously announced in August 2023, New Millennium Concepts, Ltd., the brand owner of Berkey Water Systems, filed a lawsuit against the EPA for classifying Berkey Water Filters as pesticides and is seeking an injunction to lift the Stop-Sale order (SSURO) placed on Berkey International—which manufactures and supplies Berkey products to NMCL.

• In November, NMCL’s case is dismissed due to what the court felt was NMCL’s “lack of standing”. New Millennium Concepts then filed an appeal with the Fifth Circuit Court of Appeals because the court failed in its requirement to accept the Plaintiffs’ arguments and evidence.
• In January, NMCL’s request for immediate temporary injunction to lift the EPA’s Stop-Sale order against Berkey International was denied by Fifth Circuit Court of Appeals. NMCL files a motion (Appellant’s Brief) rebutting the EPA’s arguments and disputing the District Court’s previous decision regarding NMCL’s lack of standing and how the court erred in dismissing the case.

The Bottom Line

• District Court Judge in original case stated: “In finding that standing is lacking in this case, the Court is in no way disparaging, or opining on, Plaintiffs’ claims. Indeed, if true, the claims are quite concerning.” By this statement it seems the Judge agrees there is a valid case which deserves action by the court to remedy, if Appellants’ standing could be substantiated.
• While the Court of Appeals has denied our initial appeal for an immediate injunction, the lawsuit was not dismissed and is still an active case being reviewed by the Fifth Circuit Court of Appeals.
• NMCL is continuing to conduct business as we have been doing, and hope the court will make a speedy decision that will enable us to resume manufacturing Berkey products. Rest assured that NMCL and its legal counsel are considering all other legal remedies to resolve the issue.

For more in depth background of the lawsuit against the EPA please see: https://support.berkeywater.com/update-nmcl-court-case-vs-epa/

September 12, 2023 Berkey Files Suit against the EPA

August 9, 2023 – New Millennium Concepts, Ltd. (“NMCL”) and the James B. Shepherd Trust, the brand owner of Berkey Water Systems, filed a lawsuit against the EPA (United States Environmental Protection Agency) this week seeking to stop its unjustified treatment and perceived persecution of Berkey Water Filters based on the EPA’s decision this year to treat Berkey Water Filters as though they are pesticides, rather than water filters.

For more than a quarter of a century, Berkey has provided water filters to the public, providing an effective, economical means of removing harmful contaminants from freshwater sources for consumers to have clean water at home or on the go.¹ In fact, an entire generation has grown up with a Berkey filter in their kitchen. If the EPA wants to regulate gravity-fed mechanical water filters, it has a process to follow, at the very least. Berkey’s filters have never caused any harm to anyone, and the removal of Berkey filters from the market inexorably means that Berkey owners will not be able to replace the filters in their systems and therefore, the demand will be met with untested knockoff and counterfeit filters that claim to be replacements that provide the same benefits—when in fact they do not.²

The EPA’s decision to persecute the market leader may well cause actual damage to the American people who the EPA is supposed to be protecting. For example, on July 11, 2023, CBS recommended the Travel Berkey system, both in print and in their broadcast news, based upon the Environmental Working Group’s testing that found Travel Berkey systems removed toxic PFAS to below detectable limits³. And on June 7, 2023, popular consumer health advocate Mike Adams recommended Big Berkey systems reporting that they removed an impressive 99.99% of radioactive cesium-137.⁴ However, EPA Region 8 is actively working to make these systems unavailable to the American people.

Berkey’s filters have never caused any harm to anyone, and the EPA’s arbitrary—and arguably irrational—new interpretation of its regulations would have a huge impact, directly threatening not only the jobs of  500+ employees globally, lost sales for Berkey distributors and retailers around the world (some of which sell only Berkey products—effectively putting them out of business) and also the well-being of the American people, the very consumers who the EPA is supposed to protect. Moreover, it would have the same impact on other outdoor water filter manufacturers, potentially putting them out of business as well.

The EPA has been regulating pesticides since 1947, mostly through the Federal Insecticide, Fungicide, and Rodenticide Act.⁵ FIFRA is exactly what it looks like – a law that seeks to regulate chemical pesticides, primarily for agricultural purposes. But the law distinguishes between actual pesticides, “substances or mixtures of substances intended for preventing, destroying, repelling, or mitigating any pest”, and “treated devices”, which use registered pesticides in their construction, e.g., seeds that are sold after being treated with a registered pesticide.

The EPA has never sought to force registration of mechanical-type water filters as pesticides until last year, when the EPA decided to start regulating Berkey’s water filters without warning after more than two decades of indisputably safe manufacture and sale.

Though there was no notice or opportunity to discuss that issue, Berkey and its manufacturing arms agreed to a request from the EPA for Berkey filtration products to be identified as “treated devices” (which is a different classification than a pesticide or a pesticide device), because they incorporate silver (a registered pesticide) in their filter media (a common additive in water filters which does not leach into the water) that protects the filter from biological grow through, a common problem with water filters.

Berkey has not hidden from the EPA, and has tried to comply with applicable laws and regulations regarding the manufacture and distribution of Berkey products. First, Berkey products were designated by the EPA as treated devices; the EPA then reinterpreted their rules and arbitrarily reclassified Berkey filters as a pesticide, issuing orders (without due process) preventing Berkey filters from being sold in some parts of the country by select Berkey dealers and vendors that received Stop-Sale Orders. This change in the rules is without notice or a shred of legal support. Berkey’s filters are not “substances or mixtures of substances intended for preventing, destroying, repelling, or mitigating any pest”, as FIFRA defines pesticides. Rather, they mechanically remove contaminants through a tortuous maze of micropores, absorption and ionic adsorption.⁶

A problem arises when a water filter system is classified as a registered pesticide because a whole host of time consuming regulations and requirements go into play, including onerous labeling requirements that must be placed upon all packaging. Basically, the regulations that require labels to go on the packaging assert that the product is a hazardous material. Other required labels include hazard precautionary statements, environmental hazards statements, directions for use and storage, disposal statements and mandatory statements that ensure the proper use of the pesticide and to prevent the occurrence of unreasonable adverse effects on the environment, which is defined in FIFRA etc. Therefore, Berkey would be required to label its water filters with pesticide language that could be very disconcerting and frightening to its customers—especially when similar and competing products are not being held to the same standard or requirements. Moreover, pesticide registration is an expensive process that can take years to get EPA approval and in the meantime, Berkey products would not be available to the American public.

As an administrative body, the EPA does not make actual law; its authority is limited to creating rules, which enforce laws that are passed by the United States Congress. As it is making rules, it is obligated to give notice of new rules and take input from those who will be impacted, which in our case did not occur.

In part, the EPA is excusing its new regulations that now classify Berkey filters as a pesticide on a notice issued in 2007 regarding electrode-equipped ion-generating devices, asserting that the use of silver in Berkey filters makes the filters into ion-generating devices, even though the 2007 notice specifically excepts that interpretation.

NMCL, and the family-owned trust that owns Berkey’s intellectual property and manufacturing authority, has employed Norred Law to sue in federal court, and seeks an injunction to force the EPA to follow its rule-making process before enforcing new regulations.

The case has been filed in the Northern District of Texas, in cause 4:23-cv-00826, and is before Judge Pittman, who has ordered briefing on the requested injunction before the end of August. Read Mr. Shepherd’s Declaration and the Original Complaint here: https://www.norredlaw.com/documents/01-Original-Complaint.pdf

[1] During their history, Black Berkey Elements have undergone what we believe to be the most rigorous testing of any other gravity-fed water filter elements. Berkey systems are simple and easy to use and require no electricity, costly installation, or tools, providing economical, long-lasting water filtration for just pennies a gallon.

[2] Black Berkey Elements are composed of a proprietary blend of multiple media types designed to work synergistically and target specific contaminants that far exceed the reduction capabilities of carbon block filters that are solely composed of activated carbon. See https://support.berkeywater.com/buyer-beware/

[3] https://www.cbsnews.com/colorado/video/which-water-filters-can-block-pfas/
https://www.cbsnews.com/amp/philadelphia/news/best-water-filters-for-pfas-chemicals-environmental-working-group-test/
https://support.berkeywater.com/travel-berkey-pfas-forever-chemical-news/
https://support.berkeywater.com/travel-berkey-forever-chemical-pfas-removal/

[4] https://www.naturalnews.com/2023-06-15-nuclear-fallout-lab-tested-water-filters-remove-cesium.html
https://support.berkeywater.com/big-berkey-cesium-radiological-reduction/

[5] FIFRA, 7 U.S.C. ch. 6 § 136.

[6] Mechanical filtering refers to a water filter construction where contaminants are caught and removed by a tortuous maze of micropores in the filter, absorption and ionic adsorption.
See https://support.berkeywater.com/how-do-black-berkey-elements-work/

This entry was posted on 24th March 2018 by Philip Boerma.

Berkey Water Filters vs Brita's: What is the Difference?

We are often asked what's the difference between a Berkey water filter and a countertop Brita water filter. Our first response is usually an ironic "marketing", but of course, the differences run much deeper and a Brita water filter does not compare favourably to the Black Berkey filters on many levels of comparison.

How does a Brita water filter compare to Berkey in terms of heavy metals elimination? A few years ago the Health Ranger published the results of heavy metal removal by various plastic counter-top water filters, the results were not encouraging. The Brita had the following removal percentages: Aluminum -33.9% (Aluminum was actually added to the water by the Brita filter, although this may be an aluminium trioxide which is chemically inert and therefore harmless. We don't know if the Health Ranger lab was able to make this distinction.), Copper 8.6%, Arsenic 12.1%, Strontium 3.6%, Cadmium 6.6%, Cesium 9.5%, Mercury 74.6%, Lead 14.1% and Uranium 10.0%. The Black Berkey filters were found by independent lab tests to remove the heavy metals listed above to a degree of 99% or higher and the radioactive elements listed above to a degree of 95% or higher.

 

Brita filter and Big Berkey

 

We have not been able to find information regarding pathogenic bacteria removal by the Brita filters as they do not publish any information regarding pathogenic bacteria elimination on their website. This leads one to suspect that bacteriological contamination is either not removed or at such a low level that Brita does not divulge this information. There was a study done years ago in which the bacterial counts were actually found to increase in the Brita filtered water. This is where the Black Berkey filters are in a class of their own and why they are classified as water purifiers as opposed to water filters, the Black Berkey filters remove pathogenic bacteria to a level of 99.9999999%.

The Brita filter cartridges must be replaced every 4 weeks or 100 liters whichever comes first, if the source water is harder than 12 degrees of Clarke hardness then the Brita water filter cartridges must be replaced even sooner. A set of 2 Black Berkey filters can filter up to 22,700 liters. Our replacement calculator allows you to calculate how long your Black Berkey filters will last based upon your own usage.

One might expect the Brita filters to be much cheaper than a Berkey water purifier over a lifespan of 22,700 liters, the opposite appears to be true. At the time of writing (March 2018) the total cost of a Brita water filter is £1130 (€1519), based upon 19 Brita filter packs of 12 filters (£59.50/€79.95 each) and total of 22,700 liters of water to be filtered. The cost of a Big Berkey including 2 Black Berkey filters is £253/€279.

If you need any help in choosing which Berkey water filter system best suits your needs see Choosing a Berkey Water Purification or send us an email at: info@berkeywaterfilterseurope.com.

This entry was posted on 6th November 2017 by Philip Boerma.

Plastic Fiber Pollution

Plastic fiber pollution of our drinking water has recently come into the news. Whereas earlier concerns were about plastics in the oceans it now appears that micoplastics have entered the food chain on a grand scale. This microplastic contamination has found it's way into drinking water around the globe. A shockingly high 83% of the tap water samples collected from around the world were found to be contaminated with microplastic fibers. We have received many questions about whether the Black Berkey filters are able to remove this plastic fiber pollution.

Plastic Fibers in Tap Water

An extensive investigation of plastic fiber pollution in drinking water found that these analyses caught particles of more than 2.5 microns in size,” 2.5 microns is 2.5 micrometers. A micron is an abbreviated term for a micrometer which is a millionth of a meter (1/1,000,000 meters). For size comparison, a human red blood cell is about 5 microns across and a human hair is about 75 microns across. Working down to a smaller scale 2.5 microns would be 2,500 nanometers.

The Black Berkey water filters can reduce viruses down to the nanometer scale, in the tested range of 24-26 nanometers. 24-26 nanometers is .024 to .026 microns…in other words, much smaller than the plastic fiber particles being found in drinking water. The fact that Black Berkey water filters have been tested to remove viruses in the nanometer range suggests that contaminants much larger in size, such as plastic fibers would also be removed. Nonetheless, since actual testing of the Black Berkey filters for plastic fiber elimination has not yet been conducted, Berkey cannot yet officially make that claim. Once independent lab testing has been done we will publish the results as soon as they become available.

A Berkey water filter system is the means to protect yourself and your family against the continuing degradation of our commons.

This entry was posted on 22nd August 2017 by Philip Boerma.

What is GenX?

GenX is the trade name for a chemical that was introduced in 2010 as a so-called “safer” replacement for a toxic contaminant known as PFOA (perfluorooctanoic acid, commonly called C8). A "safer" alternative or maybe a less well known and thus less well regulated alternative, who knows? Like its predecessor, GenX enables the production of common household products such as non-stick teflon pans and water-repellent fabrics. Although few health studies are available on GenX, toxicologists say GenX is chemically almost identical to C8, thus sparking concerns about adverse health effects. GenX has recently come in the news in The Netherlands as it has been found that Chemours (formerly DuPont) has been dumping GenX contaminated effluent into the local river as well as the air through it's chimneys. GenX is not currently regulated by EU institutions and is able to circumvent further investigation at the moment due to this gap in regulatory oversight.

This entry was posted on 18th May 2017 by Philip Boerma.

Monsanto and it's weedkiller Roundup is back in the news, this time not for falsifying glyphosate carcinogenic test results, but due to the poisoning of Dutch drinking water. According to the Dutch water company Vitens 50% of it's customers use Roundup in their gardens not realizing that this herbicide eventually ends up in their drinking water. This is not to mention the widespread and intensive use of Roundup and other herbicides in modern agriculture. The Dutch Institute for Health and Environment (RIVM) found that a quarter of the wells it tested were contaminated by Roundup residues. The RIVM says there is no reason for concern but as we noted in our previous post; based on a study by King's College, London the current acceptable levels for glyphosate in drinking water are way too high. The only acceptable level of glyphosate and other herbicide residues in drinking water is zero.

Boycott Roundup

We cannot expect any protection from the powers that be. The European commissioner for Health and Food Safety sees no need to ban Roundup as according to him "the science is divided on whether Roundup is carcinogenic". The European Chemicals Agency (ECHA) has recently found glyphosate not to be a human carcinogen which contradicts the findings of the World Health Organization. It's quite apparent to even the casual observer that although the science may seem to be divided what seems to be even more the case is that the regulatory agencies appear to be compromised as evidenced by the California court case we highlighted in our previous Berkey blogpost.

In any case Vitens and other Dutch water companies are setting a good example by suggesting to all their customers to not use Roundup or Imex as a weedkiller in their garden. In the meantime using a Berkey water filter will keep your drinking water pure and prevent you and your family being exposed to a wide range of chemical contaminants.