Berkey Water Filters Sues the EPA

This entry was updated on 13th March 2024 by Philip Boerma.

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 favourable 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 was 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 an immediate temporary injunction to lift the EPA’s Stop-Sale order against Berkey International was denied by the Fifth Circuit Court of Appeals. NMCL filed 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 the 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 the 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 knockoffs 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. 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 labelling requirements that must be placed upon all packaging. 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, 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/

Plastic Fiber Pollution and the Berkey Filters.

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

Plastic fiber pollution in our drinking water has recently come into the news. Whereas earlier concerns were about plastics in the oceans it now appears that microplastics have entered the food chain on a grand scale. This microplastic contamination has found its 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 can 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 micron. 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.

Roundup Glyphosate Update

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 caseVitens 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.

The Berkey Roundup Roundup

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

Monsanto, the company that gave us Agent Orange the chemical agent used for exfoliating and permanently poisoning the Vietnamese jungle during the Vietnam war has now been found to have colluded with US regulators in falsifying carcinogenic studies for Roundup, the number one weed killer in the world. The UK mainstream media or more accurately the UK presstitutes are strangely silent on this, not a word from The Guardian, The Daily 'Torygraph' or the BBC to name but a few. The Independent actually has the gall to waffle for Roundup in this article about "the controversial weed killer", controversial only in the eyes of those opposed to science as one perceptive commenter noted.

Roundup Weed Killer reported by Berkey Water Filters Europe

First of all in a study released in January by King's College, London and published in Nature magazine it was found that glyphosate, the active ingredient in Roundup, led to severe liver damage in rats. This at dosages 75,000 times less than what is permitted by European law. No attention was paid to this by any of the British media. A question can then be fairly posed: how much do Monsanto, garden centers, agricultural suppliers, farmer's unions etc. advertise in British media to facilitate no attention being paid to this damning research? Is the sin of omission equal to the sin of commission, or isn't it?

It now appears that Monsanto has never "conducted chronic carcinogenity studies" and that Monsanto cannot claim that "Roundup does not cause cancer", this was said by Monsanto's own leading toxicologist in an email made public in a lawsuit currently being heard in California. A leading official with the US Environmental Protection Agency (EPA) emailed Monsanto saying he could "kill any potentially damaging research" and if he could kill this he "should get a medal". Monsanto's response to these damning revelations is; "It’s not an effort to manipulate the system". If it wasn't so mendacious I would have fallen off my chair from laughter at such a transparently false rebuttal from Monsanto.
Another legitimate question is how do the thousands of people working for Monsanto, a company worth $60 billion, sleep at night and justify this criminal behaviour to themselves and their families?

Boycotting Roundup and all Monsanto products is at least something we can do as our regulatory agencies are apparently compromised and corrupted by lobbyists. A lobbyist being a euphemism for one who bribes our government representatives. Fortunately, we can also protect ourselves from drinking water poisoned by Roundup's active ingredient glyphosate by using the Berkey water filter systems. The Black Berkey water filters, the water filters against which all other gravity fed water filters are compared protect your family's health with clean drinking water.

Drinking Water Quality in the UK

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

We are all dependent upon a safe and reliable supply of high-quality drinking water. In general, the water companies in the UK meet this need, by maintaining the network and regularly testing for contamination. Nonetheless, accidents do happen due to mistakes, delayed maintenance, negligence etc. and your water supply can then become compromised. Not all drinking water accidents reach the news, but in the past few years, there have been incidents in Greater Manchester, South Yorkshire and Derbyshire to name a few. These incidents will most likely increase in the coming years as maintenance is delayed or postponed. As a result, necessary investments are sacrificed for so-called “shareholder value”. Due to privatisation, the water companies are now largely driven by profit motive which, is in direct conflict with their primary obligation the delivery of clean drinking water at an affordable price for all. The combined CEO salaries of the 19 private water monopolies is 10 million pounds and your water bill has risen by 40% since privatisation. You don't need to be a weatherman to see which way the wind blows to quote His Bobness. These CEOs and the private equity firms who own the water monopolies do not have your best interests at heart.

River Itchen near Ovington.

A Berkey water filter system can at the least give you and your family the assurance that when things do go wrong with the water supply you have a safe source of water at hand. Of course one needn’t wait until an emergency a Berkey water filter system is your guarantee of clean, pure water daily for only pennies on the gallon.

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